NIKAH in a sense is the permission under Divine command for the continuance of human race on earth so that the affairs of the world may be conducted in a systematically planned manner, which is in essence the purpose of creation. The urge between the opposite sexes for a communism is in born in any living creature among the human beings as well as the animals. But the expression of this natural urge, for very special reason, among the human beings has to be ordained and controlled in such a way that distinction between man and animal may be will defined so that any trespass of the laws promulgated in this behalf may be at once detected and put right either through persuasion or by imposition of penalty through the agency of religion at any time of human civilize down the age.
Islam being the most accomplished and final institution to safeguard the well being of mankind in both the worlds under Divine command contained in and promulgated through the Holy Quran, the progress and well being of humanity at large has taken utmost care to preserve and promote the sanctity of human sensibility in private and public sectors. It is not an exaggeration that the Quranic injunctions enlarged and supplemented by Prophetic interpretation by way of Ahadees are the best, most modern and most appropriate to conduct and guide all human inspiration in all walks of life. For our understanding and practical application of Quranic laws and the Ahadees we shall confine in this section our main attention as far as the requirements of marriage and Nikah are concerned.
Almighty Allah has permitted union of man and woman and the Holy Prophet (Allah's peace and grace be upon him) has encouraged such a meeting within the defined and well guarded limits. The initial or the very first stage of entering into the life of one another between man and woman is the NIKAH which in the modern terminology is the social contract of entering in to one another life as husband and wife (which words come into existence only after consenting and signing the agreement in a pronounced public assemblage, and under very specific provisos which call for abiding adherence without any let up or willful negligence.
The Holy Prophet (SallAllaahu alayHi wa AaliHii Wasallam) has said addressing the youths, `any one of you who has means to Nikah (marriage contract) should do so as Nikah prevents illicit incursions of heart and eyes and those of you who lack resources for Nikah should keep fast as chicks passion and sensual imbalance. He has also said that one who desire's to meet Allah in a state of purity and cleanliness, he should marry a *** woman. He has said the person who holds dear my way of life, he should follow my sunnat and my sunnat is Nikah. HE has said `the best asset in the world is the virtuous woman'. He further said `one who possesses means (financial resources) to marry but does not marry, he does not belong to us.
PROBLEM:- Nikah means that bind or agreement which makes sexual intercourse and other affairs of life with the woman concerned lawful and permissible.
PROBLEM:- The man should be of balanced sexual temperament (not amounting to animality) but not impotent and if he has means to provide `meher' maintenance of life necessities then for him the Nikah is sunnat-e-Muakkadah (stressed as binding) and to avoid or refrain from marrying is tantamount to committing a sin. If the intent of marriage is to protect oneself form Haram (i.e. adultery etc) to follow the sunnat and have children, then the marriage so contracted would also fetch blissful award. But if the intent of matrimonial engagement is largely to satisfy the sexual impulse and sensual desires, then no sawab will accrue out of this marriage.
PROBLEM:- The sexual urge is dominant and it is feared that if in the absence of Nikah he might commit adultery it is essential (wajib) for him to marry, especially when he can afford financial obligation. Similarly if he cannot check himself from looking at other women (with passionate desires) otherwise he would have to resort to hand activity, then in such a condition Nikah is wajib.
PROBLEM:- If it is definite that without marriage he will be obliged to seek unlawful means (adultery) to then it is obligatory for him to get married (without loss of time and under excuses of one kind or another).
PROBLEM:- If there is a fear that in the event of not getting married he will not be able to fulfill financial and other domestic obligations, then in such a condition the Nikah will be makrooh, But if he is sure and definite about these habities, then Nikah will be Haram (in consequence) although the Nikah will be permissible under Shariat's law.
PROBLEM:- To remain faithfully engaged to discharge the obligation related to Nikah, maintenance of domestic necessities together with the breeding and training of children is better and more righteous than being busy in offering Nafil prayers.
PROBLEM:- The following things are mustahab in connection with the Nikah.
1. It should be open and announced in presence of people.
2. To recite a Khutbah (it may be any khutba, but it is better to recite the khutba which is mentioned in the Hadees).
3. It may be held in the Masjid.
4. It should be held on a Friday.
5. It should be solemnized in the presence of witnesses known for their integrity and justness.
6. The woman should be less in age, family line wealth and reputation than those accredited to man but of a higher consideration is respect of beauty, character, moral behavior and virtuous. (It is reported in the Hadees that if a man marries of woman on account of her public status, Allah will bring disgrace for him, and once who marries a woman because of her wealth, Allah will increase his helplessness and dependence, and if a man marries a woman for her being of a higher family stock, his mean-ness and worthlessness shall become known very soon. But if a man marries in order to protect himself from indecent gazes at other woman and honour the blood relations, Allah will bless the woman and the man with prosperity and righteousness.
Problem:- The Eejab and Qubool are integral parts of the Nikah which means that the woman and the man in their respective turns to ascertain their willingness to enter in to one another's matrimonial relations as husband and wife as the case may be.
PROBLEM:- The tense sequence of EEJAB and QUBOOL should be in the past tense (confirming that the contract has already been entered to and agreed upon mutually. Whatever the grammatical or linguistic formulae may be applied it should not leave any doubt in the mind of about the certainty or definiteness about the issue which is Nikah and its acceptance. That is the reason why the Eejab (proposal) and Qubool (acceptance of the Nikah by both the spousul parties cannot be declared or pronounced in the future. Therefore unless the person say "I have accepted the spouse (bride/bridegroom) the nikah will not be valid. To say I will accept (the proposal), will not a confirmation and as such invalid.
PROBLEM:- Two distinct words are enough to confirm a marriage deal viz (1)"Nikah" or the proposal or declaring the intention of marriage and (2) TAZAWWUZ (literally meaning becoming or taking a spouse) which confirms that the man and the woman mentioned in the Nikah have become husband and wife for all practical purposes. Other words indicate the confirmation of the marriage contract are indicative nature and can be used if the intentions are clear and beyond doubt or merely conditional.
PROBLEM:- In the Nikah are not at all objectionable.
PROBLEM:- There are certain conditions in the Nikah to make it lawful in the domain of shariat.
1. To be of sound senses (Aqil). If a lunatic or minor boy solemnizes the Nikah, it will not be valid or binding.
2. Attainment of maturity (Baligh). If an immature (na'ba'ligh) boy performs the Nikah, it will be valid sulyect to the permission of the vali (guardian or one given authority by the parent as their spokesman and representative).
3. Presence of Witnesses. The process of Eejab and Qubool must be conducted in the presence of witnesses who should normally be Two men or One man and two women. The witnesses should be Free (not slave), of sound sense (Aqil) and mature (having attained legal age of maturity) who should hear every word of the Nikah (lunatics immature in age or a slave cannot stand as witnesses). If the man and the woman solemnizing Nikah are both Musalman, the witnesses should also be Musalman. If a musalamn man marries a woman of another religion having a revealed Book, then a Zimmi Kafir( the non muslim under the protection of an Islamic government, paying Jizya) can also stand as a witness.
PROBLEM:- Only women or eunuchs cannot stand as witnesses, unless a man accompanies them as a witness.
PROBLEM:- If the witnesses of the Nikah are transgressors (morally and religiously) a blind or involved in guilty of false accusation against chaste innocent women, the Nikah so performed will be valid, but if any of the marrying couple raises any objection subsequently, then the Nikah will not stand as proven on their evidence.
PROBLEM:- The presence of the witness at the time of Eejab-o-Qubool (Nikah) is essential. Therefore if the Nikah is conducted on the authority of Ijazat (permission by the parents/ guardian /vali) and the witnesses were present at the time of Eejab-o-Qubool but were not present when the permission was given, then the Nikah so conducted will be valid, but in the event of reverse condition, the Nikah will not be in order.
PROBLEM:- Witnesses do not mean only the two persons chosen from the gathering, but all those present there morally are also the witnesses except those whose evidence is not reliable for any of the reasons mentioned above.
PROBLEM:- Witnesses are not essential when taking consent of the woman but if they are present at the time of Nikah, the Nikah will be valid. The need of presence of witnesses while taking consent by the woman is necessary because if at any time the woman denies having given the consent, the evidence of the witnesses will become necessary.
PROBLEM:- The practice at some places in appointing a representative on behalf of the (real) Vakil to obtain the consent of the woman is not correct as a Vakil (representative of the parent of the bride) cannot appoint a representative (Vakil) on his own behalf. In such a case the Nikah becomes useless. The correct procedure would be that the Qazi (who conducts the Nikah), should himself become the representative vakil of the Vali of the bride and personally obtain her consent and do the needful afterwards.
PROBLEM:- Before obtaining consent of the bride the identity of both the persons (man and woman) should be established, for the convenience of the witnesses only then the Nikah will be valid. If the woman is present in the gathering, the Qazi can obtain her consents even by a nod (when in veil). The other way is that the parentage of the woman be announced to establish her identity, similarly the woman should also be informed of the identity of her would be husband, while obtaining her consent.
4. PROBLEM:- The Eejab-o-Qubool, by both consenting persons should be done in the same sitting (When arrangements for the same have been made). Any breach or rupture in the conduct of the proceedings which do not allow consent of both man and the woman and making it known to the witnesses and all those present and witnessing the ceremony, will make the will not be correct. Any venue of obtaining simultaneous consent, should be arranged.
5. PROBLEM:- The terms of Eejab-o-Qubool should be accepted in full as in every respect especially the amount of Meher etc. Imposing new conditions and accepting some part only will make the Nikah unlawful.
6. If the girl has reached puberty (Baligh) then her willingness / consent is essential. Her vali (guardian) has no right to arrange marriage against her will.
7. There should be no oblique or clear reference to some future conditions to finalize the marriage.
8. The Nikah and the expression there of must be in relation to the person as a whole with whom marriage is sought and not any part of the body which stand for itself. The poetic or allegorical expression should be avoided as they often lead to misgivings and misinterpretations.
(The Women with whom marriages Haram.)
There are some specific categories with whom marriage is forbidden as haram. There are certain reasons behind declaring these women as haram.
There are nine (9) such kinds of women, seven of whom are haram on account of direct blood relations namely
4. Maternal aunt
5. Paternal aunt
6. Brother's daughter's (niece)
7. Sister's daughter (niece).
By MOTHER is meant the woman is whose lineage she herself belongs, directly or indirectly. Therefore grand paternal mother (dadi) and grand maternal mother (nani) and all upper relations in this lineage are haram, because all of these are included in the rank of mother of parents, grandfather and grandmother and great great mother of father and mother.
By DAUGHTER meant all those women who are her descendants (off spring). Therefore granddaughter and great grand daughter (on paternal or maternal side) however downward they may go in family dynasty are all haram.
PROBLEM:- Sister, she may be real (from the same parent) or unreal (from mixed parentage) are haram.
PROBLEM:- The paternal grandmother (dadi) and maternal grand mother (Nani) are in the ranks of ones owns grand mother and as such the maternal mother of the maternal mother and the paternal mother of the paternal mother are all haram.
PROBLEM:- The grand offsprings of the offsprings of one's own sister and brother are also haram.
PROBLEM:- The illicit daughter, grand daughter, brothers daughter and sisters daughter are all also haram.
\PROBLEM:- The daughter of the woman with whom her husband had committed Le'a'n ( ) will be haram on him although she will be attributed to her mother.
The other kind of woman who are haram are on account of ,
1. The daughter wife will whom has been committed.
2. The mother, grand mother (mother of the parents and the wives of real father and grand father the wives of unreal sons and grandsons.
PROBLEM:- The intercourse of the natural pattern and are akin for the purpose of reckoning the consequence of the act. If the man has intercourse with a woman her daughter becomes haram on him even if he does not commit wati.
PROBLEM:- A man marries a woman but before he had with her, there comes separation between them. In that case the daughter of that woman will not be haram on him.
PROBLEM:- Just as the occurs on account of it also occurs when one touches a woman kisses a woman or looks at the internal part of a woman's shame under excitement of passion (sexual impulse) whether it is intentional or by mistake of by way of forgetfulness or under compulsion, it will in any case prove.
PROBLEM:- Conditions for the are as under,
The woman should be "Mushtahat" or the one who excites passion, which means that she should not be less than nine years of age; she should be alive. If he touches a woman (girl) of less than nine years age or the body of a dead woman the condition of being haram shall not apply.
PROBLEM:- A man marries a woman and his son marries the daughter of that woman from another husband; it is permissible. Similarly if the son of that man marries the mother of that woman, it is valid.
The Third kind of woman is of those of whom two of the same relation cannot remain in the Nikah of one and the same man.
and these are the woman of one of them is supposed to be a man the other become haram on him For example
1. In the case of two sisters, if one of them is supposed a man the two (sister) would become brother and sister.
2. The relation between paternal aunt and the paternal sister, when paternal aunt is supposed to be amn, th resultant relation between should become uncle and cousin and if the paternal sister is suppose to be a man the relation shall become that of the paternal aunt and the cousin (uncle's son)
3. The relation of maternal aunt (Khala) and paternal daughter (Bhanji). If Khala is supposed to be man the relation becomes that Mamoon and Bhanja mother's brother and (his son), and if mamoon's daughter (Bhanji) is supposed a man relation thus becomes that of Bhanja and Khala.
Under shariat's law two of those kind of women can not brought together under one man's Nikah. If he divorces, one then till the expiry of the Iddat he cannot marry the other woman.
PROBLEM:- The two kinds of women of the family or blood relations referred to above are not restricted to them above but the same applies even to foster relations two of which to be present under one and the same person is also haram, for example foster-sister, foster-aunts (maternal and paternal).
PROBLEM:- If there be two such women that if any of them is supposed man (masculive) the other becomes haram but if the other woman be supposed a man the first does not become haram, then two of this kind can be made to live together with the same man (husband), for example the woman and the daughter of her husband that if that girl be supposed a man then she would be haram on him as then she would be his unreal mother (sauteli maan) and if the woman be supposed a man then there shall be no relation with him, same proposition applies in respect of a woman and her daughter in law.
The Fourth kind of women are those who are haram because the one is under the possessive (as property) rights of the other like the lady of the house and her maid servant (with no rights of her own) of any description.
PROBLEM:- A woman cannot marry her male servant (ghulam) whether he be under her exclusive control or be shared by others as well.
The Fifth kind of women are those with whom is Nikah haram because of non-belief or faithlessness (shirk).
PROBLEM:- A Musalman cannot marry a woman of other sects like Majusis (Fire worshipers) idolaters, sun worshipers and star worshiper and all other sects except those belonging to revealed religions and Books, like Christianity or Judaism (Jews), but such marriages should be avoided as complications are like by to arise in such formities. But even in the such case then should be reasonable surety that there women will not turn apostate in which event the Nikah shall become void.
PROBLEM:- A Musalman woman can not marry other than a Musalman man , whatever the latter's religion or belief be.
PROBLEM:- The Nikah of a murtid (a man who rejects or denounces his religion a murtidah (feminine of murtid) can not be valid with any one.
PROBLEM:- The husband and wife were both formerly non-believers, but both became Muslims, in this case the former Nikah (marriage bind) will remain intact, no fresh Nikah binding.
If only the husband accepts Islam, the woman shall be asked to do likewise. If she accepts Islam the wedlock will not be broken, otherwise separation will be made.
Similarly if the woman accepts Islam then the man will be asked to believe. But if he fails till the passage of three menstruation courses by the woman, she does not remain his wife, she can marry whom she likes.
The Sixth kind of women is that (purchased) slave girl with whom Nikah is solemnized as a Hurrah (independent and free woman).
PROBLEM:- In the presence of Hurrah under lawful Nikah with her, another Nikah with a slave-girl is not justified.
PROBLEM:- If a person first marries a slave girl with the Hurrah (independent free) woman, his Nikah with both will be in order.
Seventh kind of women are those who are connected with others (otherwise than by marriage) Nikah.
PROBLEM:- Another Nikah with a woman already in the Nikah of some one else is not permissible, even if she be in Iddat of some one else either on account of divorce or death for any other reason.
PROBLEM:- Nikah with a woman who is pregnant on account of adultery is allowed. If the pregnancy is by himself, he can also have intercourse (wati) with her. If the pregnancy is some one else then till the birth of the child no wati (intercourse) is permissible.
PROBLEM:- Nikah with a woman whose pregnance is established as belonging to a certain dynasty (sabit un Nasab) is not allowed.
Eighth kind of women with whom Nikah is not allowed are those who are above the number of women permissible by Shariat. They are haram for a Nikah.
PROBLEM:- An independent free man can have four women in his Nikah at a time, while a slave (Ghulam) can not have more than two women in his Nikah. An independent free man can have any number of slave girls.
PROBLEM:- Mota's is haram even if the Nikah is performed for a limited period, it is haram , though it may be for the whole life.
Ninth kind of women are those who are haram on account of fosterage.
PROBLEM:- Women who are haram on account of family/blood relations are also haram on account of fosterage, except those mentioned in the next chapter dealing with fosterage relations.
PROBLEM:- The fosterage period of every child (boy/girl) is two years. It is not correct, as it is generally said that the fosterage period for a female child is two years while that for a male child it is two and a half years. In respect of feeding period there is no distinction between a male child or a female child. This period of two years is for feeding the child. But for a Nikah to declared as haram the feeding period is two and a half years. It means that although to feed the child for more than two years is haram, if the mother feeds the child within (less than) two and half years, then the Nikah will be proved haram but if the child takes the milk for more than two and a half years, the Nikah will not be haram, though feeding as such is not permissible.
PROBLEM:- Feeding beyond the prescribed limit of two years is not allowed even for the purpose of cure of some ailment.
PROBLEM:- The foster relation is established with the feeding by a woman and not by the milk of man or an animal. Pouring milk in nostrils or throat amounts to feeding which will make the woman haram. Taking the breast in the mouth does not mean taking milk unless it is certain that the milk has gone down the throat irrespective of the quantity of the milk.
PROBLEM:- If the milk of the women is poured dropped in to any part of the body or through any organ, will not mean fostering by the woman.
PROBLEM:- Women must be careful to feed another child, a children as a matter of habit. If she feeds with her milk to any, she should remember herself as also tell others so that complications may not rise up at any time in future. Even normally no woman should feed another's child without her husband's consent. It is makrooh, but it is feared that without feeding there is danger to the child's life, she may feed the child with her milk. In that it is not makrooh. In any case it will be fostering within the prescribed period.
PROBLEM:- The woman who feeds other's child becomes his or her (foster) mother and her husband will become the (foster) father of the child and all the children of that woman will become brothers/sisters of that child even if they all be from the same husband or any other husband of the woman. Further relations such as uncle/aunt etc will be taken as established as if through PROBLEM:- What is haram in blood relations is also haram in Foster relations. (other complex details have been omitted).
PROBLEM:- Nikah is permissible
1. Between the real brother and the foster sister or
2. Between the foster brother and his real sister or
3. Between the foster brother and his foster sister. There is also a case of permissibility between the brother and sister of the family relation when the sister of the unreal brother who (the sister) is from another father.
PROBLEM:- Two children (boy and girl) who take the milk of the same woman become brother and sister and the Nikah between them is haram, although there be a distance of year when they took the milk and if the milk was of two different husbands (who married the woman one after another).
PROBLEM:- The Nikah of the girl who takes the milk of a woman can not be held with the sons and grandsons of that woman because this girl has become their sister or the paternal aunt.
PROBLEM:- The woman gives birth to a child as a result of adultery with her by an adulterer, if any girl takes the milk of that adulterous women shall become haram to the adulterer.
PROBLEM:- The milk of a woman is mixed with water and some medicine and given to the sick in this case if the ratio of the woman's milk is greater than or equal to the mixture, then it becomes a case of fosterage (Raza'at). In the reverse case the fosterage will not be established. This is equally applicable in the case of mixture of a goats milk and the woman milk where dominance or otherwise of the woman milk will decided the issue of fosterage. Similarly if the milk of two women is mixed and given as a medicine, the woman whose milk is dominant shall become the foster mother of the patient. Even when the ratio of the two is equal then fosterage will be held valid in respect of the women, which means that both the women will be adjudged foster mothers.
PROBLEM:- For the confirmation of fosterage opinions of two just and men or one man and two women shall be valid, even it one of the two women one is herself who offered her milk.
PROBLEM:- If the husband sucks breast of his wife, there occurs no damage/ill effect to their marriage / Nikah even when the milk comes and enters his throat.
THE VALI AND HIS AUTHORITY
Vali stands for a nominate person of authority the assigned affair according to his judgment and discretion. His decision or order is binding on to whom so ever it is directed whether the other person or party likes it or not. Vali must be of mature sensibility (Aqil) and an adult as a condition of being appointed nominated as such, no lunatic can be made a wali. It is also essential for him to be a Muslim as an infidel (Kafir) can not exercise authority over a muslim. He needs not be a virtuous person even a transgressor or an impious man.
There are four grounds or basic qualifications for being appointed a Vali
1. Nearness in relationship (QARABAT)
2. Possession or property (milk)
3. Friendship, affirmity (Vila) and leadership
4. Power to impose authority (Ima'mat).
PROBLEM:- The entitlement of inheritance must be on his own personal basic by way of nearness in relation. It should not be as a sequence to relationship with a woman. In other words the vali is that inheritor that after distributing the inheritance (assets left by the deceased) among the rightful recipients (ZAWIL FURUZ according to Islamic injunctions) whatever is left undistributed belongs to him. And when there are no legitimate near relations (ZAWIL FURUZ) to claim or inherit the property the whole becomes his share by way of inheritance on account of his nearness in relation.
Such a nearness in Nikah is the same as is allowed in the distribution of inheritance, which means that the first and the fore most right appertains to the son, then to the grandson, then to great grandson and downward generation in the same lineage. When nine in this lineage is available or surviving then the inheritance shall take place in the upper lineage, the foremost of whom is the father then the grand father, then the great grand father and so on in the upper strata in the same lineage.
Then come the real brother and the step brother, then the son of the real brother and the son of the step brother, then the real uncle and step uncle, then the son of the real uncle and the son of the step uncle, then the real uncle of the father and his step uncle (Note: this chain of relations for the purpose of inheritance moves in favour of the grand father and great father (real and step) and their children. In short, the nearest surviving make member of the family will be vali or the rightful inheritor When the son the nearest relation is not surviving then his grand son and great grand son. For the person to be a vali, he should be free and independent, the mantle of being a vali can not assigned to the slave.
PROBLEM:- When no male survivors in any phase are available, then the person from amongst the female relations to be declared as vali is the mother, then the grand paternal mother (dadi), then the maternal grand mother (nani), then the daughter and grand daughter, then grand daughter (mother's side, Nawasi), then the great grand daughter etc. the relationship moves to grand father (nana, mother's side), the real sister the step sister and their offspring.
PROBLEM:- In the event of there being no relations the vali will be that person known as MAULAL MAW'AL'AT or the person on whose hands the father of the deceased has embraces Islam.
PROBLEM:- After of all these the king of the Islamic Kingdom shall be the vali but he can not keep the inheritance with himself and it should be deposited in the Biat-ul-Mal.
PROBLEM:- The Wasi (the administrator of a will or Wasiyat) is not authorized to arrange the marriage of the orphan ward under his guardianship, even if to father had made a wasiyat to this effect, unless he is also the relation in which he is a vali and authorized in this behalf.
PROBLEM:- If some one nourishes a minor child or adopts him / her can not become the vali, similarly rearing an abandoned child does not entitle him to become the vali.
PROBLEM:- The vali of a slave girl is her master, nine else can be her wali. If the slave girl or the slave (man) marry on their own, then it depends upon the master's will to accept or reject the Nikah and his command will be binding, then in the combined will of the masters shall depend the fate of the Nikah.
PROBLEM:- The (real) Kafir is the wali of the (real ) Kafir, But the apostate (Murtid) is the wali neither of the kafir nor of the musalman even a murtid can not be the wali of another Murtid.
PROBLEM:- If the wali turns lunatic, then he no longer remains the wali. If his madness / lunacy if of such a nature, that at times he loses senses and at other he behaves normally. In this situation his position as wali remain, but the decision made by him in his lunacy will not be binding, while those made in his normal senses will be valid.
PROBLEM:- Two persons working as wali perform the Nikah of the same person, then the Nikah by the vali doing it first will be valid.
PROBLEM:- Of the two walis (one being near and the other at a distance, both having the rights as of wali) if the near wali is not present, then the Nikah performed by him will be valid. But in the presence of Near - wali the nikah by the distant wali is not valid.
PROBLEM:- The man (kufu in status, but lower than the woman sends a propose for marriage and willing to pay the Meher, but the near wali is not willing and refuses without giving any reason, then the distant wali can give permission for the Nikah (which will be valid).
PROBLEM:- For the marriage (Nikah) of the immature or underage (male or female), lunatic and slave (girl or male) the presence / appoint of a wali is essential, without the wali their Nikah is not permissible. It a free and adult woman a marries a man of kufu status (of the same or equal tribe, caste) without the wali the nikah will be valid, and if she marries with the man of other kufu (without the vali) the Nikah will not be valid if the vali agrees agrees at a later date.
PROBLEM:- The woman who has male relation of hers if she knowingly marries a man of non kufu status, the nikah will be valid.
PROBLEM:- No marriage / Nikah of a mature (adult) free (not slave) and sensible woman shall be valid without her willing consent, even if her father and the king (of islamic state) are give their command in this respect, whether the woman is virgin or otherwise. Similarly no one can insist upon the Nikah of a man adult or a bonded slave or girl without their willing consent. By bonded slave (male or female) is meant the one whose master agrees to free him if the (fixed) amount is given to him.
PROBLEM:- If the near wali or his vakil or some messenger ask the consent of a virgin woman for acceptance of nikah and she remains silent or smiles or laughs and weeps without sound then these gestures will indicate her consent.
PROBLEM:- The near wali without taking the consent of the woman performs her Nikah. Now some messenger of her or any other unconcerned wali informs her about the Nikah. If now the woman remains quiet or she smiles or she laughs or weep without sound, then in all these gestures the Nikah will be deemed valid and she accept it.
PROBLEM:- If the distant wali or some stranger seeks the consent then her silence is not the sign of approvals. If the woman is virgin than instead of giving her open consent if she merely utter such words directly or obliquely which relate to the nikah, marriage or relation between husband and wife, then this would be an indication of consent.
PROBLEM:- While obtaining consent it is also necessary that the name with whom she is begin married should be taken or indicated in such a way that she comes to know identity of her spouse. Merely general announcement as to his caste / tribe or any indirect reference will not be enough.
PROBLEM:- While obtaining consent the amount of the meher should be mentioned. It is not mentioned then the Meher fixed must not be less the Meher-e-Masal. If it is less than that, then the Nikah will not be valid.
PROBLEM:- In the case of the immature underage boy or girl, lunatic and under mutah (Matu'h) the wali has the right to imposed his authority and if the father, Grand father or the son have allowed the Nikah, then it can not be revoked even if the people do not want this Nikah and the persons concerned become mature or the lunatic regains senses. (other complex details have been omitted).
PROBLEM:- When a woman attains puberty, she should let it be known through some one, stating at the same time that she assumes control /authority over herself to take any decision about her matrimony etc.
PROBLEM:- If the woman did not know that she is entitled to exercise her to rights on account of her reached puberty (or having come of age under law) and as a result of her ignorance in this behalf she did not use her privilege then she is herself to blame (if some wrong has occurred to her) because ignorance us no excuse.
PROBLEM:- If a boy or girl comes to age of adulthood but they do not make it known, then this silence, does not annul the right of adulthood, unless their consent in some matters is given in such a way that they have done deliberately and in full consciousness of the consequences. If it has resulted in the annulment of Nikah, then the question of Meher will be decided whether or not the intercourse has taken place. If it has then meher is due, otherwise not. In the event of intercourse, then in the wake of annulment of Nikah, the woman will have to undergo the term of Iddat.
THE KUFU [FAMILY STATUS OF MAN].
By the word of `Kufu' is meant the family and the status of man entering into a marriage fold with a woman. Under this term Kufu. generally status of a man is lower than that of the woman, but not of that state which may be a shame of undignified in mutual behavior. This term is usually applied to man who social status is always a matter of borbe or interest whenever the wedlock affair between two strangers or of different status is spoken of. The woman of any grade / status is seldom a matter of enquiry.
PROBLEM:- The Nikah of an underage boy with a girl of a non Kufu status (belonging to other caste / tribe) performed by some wati are other the father or grand father is not valid. A mature person, can perform his Nikah with some one of non-kufu status because the question of being a Kufu or non kufu is not a point of consideration, but in the case of underage boy and girl the point of Kufu is to be kept in view.
PROBLEM:- The validity of Kufu depends upon six factors,
1. Family Lineage (nasab)
4. Being Free (not a slave)
5. Integrity / honesty (diyanat)
6. Wealth (financial position).
All the dynasties belonging to Quraish are Kufu to one another in as much as a Qarshi (of the Quraish Tribe) is a Kufu of a non Hashimi, but no non-Qarshi is a Kufu of Quraish. Except for Quraish all the communities of Arabs are Kufu to one another, Ansars and Muhajars are equally included in this. A person of Ajami (non Arab) lineage is not a Kufu on an Arab, with the exception that the nobility of a religious scholar of any lineage is about the nobility of any other kind.
PROBLEM:- A person who embraces Islam (i.e. his ancestors were non-muslims) he is not a Kufu of one whose father is a Muslim, and the person whose father only is Musalman is not a Kufu of one whose grand father is a Musalman. For an Arab who himself embraces Islam or Islam is being followed by his father and grand father all are equal (and Kufu of one another).
PROBLEM:- A transgressor (fasiq) is not the Kufu of the daughter of a righteous father, though the girl herself is not righteous. This is obvious that a transgression in faith far worse than the transgression in conduct / character. Therefore the kufu of a sunni woman can not be that irreligious religious person who irreligiosity has not touched the boundary line of Kufr (infidelity or unbelief). And such anti religion persons whose anti religiousness has overshot the bounds of disbelief, the question of such a person marrying a Muslim woman does not arise at all, the issue of his being a Kufu is not even worth mentioning.
PROBLEM:- The status of Kufu in respect of wealth or financial position demands that the man must possess enough amount of money so as to pay off the Meher-e-Mu'ajjal (Instant payable Meher) and the alimony (expenses on maintenance and etc of the family). If he is not engaged in any profession, he must provide at least a months provisions, an if he is daily wage earner he must give the family the minimum which would suffer daily expenses.
PROBLEM:- If the woman is dependent (resource less) and her father and grand father are also like her, then her Kufu from monetary point of view can be only that person who is able to pay off instant Meher and provide maintenance expenses.
PROBLEM:- The minor son of wealthy man will be considered Kufu in respect of money, even if he does not have any amount of his own.
PROBLEM:- Persons engaged in menial profession can not be Kufu of those engaged in noble professions. However those in the capacity of shop owners, factory managers of things considered as of law status such as shoe making etc. can be Kufu of those of less resources belonging to noble professions.
PROBLEM:- A man was Kufu (financially) at the time of Nikah, but his state suffered financial set back, in spite of this his Nikah will remain valid.
PROBLEM:- A man who was engaged in low brand profession which did not make him Kufu for some reasons (feeling shame) he left the job. If he improves his status which removed his sense of indignity, he will now be a Kufu.
PROBLEM:- Though Physical beauty, suffering form some disease and defects (of any kind) are all of passing a nature, even then the wali must keep their repercussions in view so that embarrassment / complication may not have to be faced at later on.
The minimum amount of Meher is 10 dirham, the equivalent of which (as it those in those days) is Two rupee Twelve annas 9 3/5 pies (These coin except rupees are defunct), either in coins, silver or some goods of equivalent price.
PROBLEM:- If the meher is less than 10 dirhams, the minimum of 10 dirhams is wajib (which should be paid) and it is fixed more than 10 dirhams, then the amount thus fixed is wajib (it should not be reduced).
PROBLEM:- When the marriage is consummated after the intercourse or any of the two dies, then in either event the meher fixed will remain unuttered. Similarly if the divorce was of ba'in nature and the man has another Nikah with her during the period of her Iddat, then this meher without intercourse etc. will become binding. However if the rightful person exempts payment in full off or half of it, then it will be treated as such, and if the Meher was not declared as fixed and the husband divorces her, then half of it will be payable, and in this situation if the husband had paid the full meher, then half of it will be returned.
PROBLEM:- The thing which can not be priced (un exchangeable able in money or on which profit can not be recovered) can not be fixed as Meher. If such a thing is fixed as the Meher then the equivalent value of it will be taken as Meher and not the thing itself for example if the meher fixed is to the effect that the (Free, not slave) husband will serve her for the whole year or he teach he Holy Quran or arrange Hajj or Umrah for her. Or if the Muslim man marries a Muslim woman or if in the Meher there is a mention of blood or wine or hog (khinzir) all of which are haram, or a condition was as a meher that the husband divorces his first wife, then in all these cases the meher will be as it is fixed in the family of this woman.
PROBLEM:- In the case of NIKAH-E-SHIGHAR the Meher is like the amount fixed in the society or family of that woman. NIKAH-E-SHIGHAR means that a man his daughter or sister with a man and that (second) man marries his daughter or sister with the first man and the meher fixed in each was the Nikah of one another. Although to do this is a sin, yet the Nikah will be deemed valid, and the meher in terms of money will be like the wajib Meher.
PROBLEM:- If no mention of the Meher was made in the Nikah, or the Nikah was solemnized in spite of the Meher having been negatived in both the case the Nikah will be valid. And if the marriage was consummated. (after sexual act) or a if any of the two dies, then the Meher payable will be like the Meher wajib. Further if after marriage some Meher was mutually agreed by the husband and the wife, then the Meher so agreed shall be payable, and if the Qazi fixed any Meher then that (Meher) will be payable, in both these case what ever is confirmed by Shariat laws, the same will be payable. If it was not confirmed and the divorce took place before the consummation of the marriage, then in both these cases one pair of clothes is to be given as wajib meher. This includes a Kurta (long shirt) pajama and hear bosom covering (dopatta) the cost of which is not more than one half of the Meher-e-Masal (normally is vogue). If the price is more than half of the Misl Meher shall be given period the husband is well of financially and of the husband is poor then the cost of the pair of clothes should not be less than five dirhams. If both are rich then the pair of clothes of any cost and if both are poor, an ordinary pair of clothes will be enough.
PROBLEM:- The provision of the pair of clothes is wajib when the separation comes from the husband side, namely a divorce,calling his wife as his or he becomes an apostate (murtid) etc and if the separation is from the wife's side then no provision is wajib, when the wife denounce her religion or kissed the husband son by way of lust.
PROBLEM:- When the husband divorces his wife whose meher has been fixed, before the consummation of the marriage, then the provision of pair of clothes is not mustahab. If the divorce is given after sexual act (denoting consummation of marriage), then whether the meher was fixed or not the provision of the clothes is mustahab.
PROBLEM:- When the woman gives up half or the whole of the Meher, it is permissible provided the husbands does not refuse, If the woman is underage (not having gone through puberty) and her father remits the meher on his own, he can not do so. If she has become an adult (is of age) then it will depend on her permission.
Consummation of Marriage (Khilwat-e-Saheeha).
The terminology used to denote the fact that after the Nikah, the sexual act between husband and wife has actually taken place is "Khilwat-e-Saheeha) and it comes into effect when the husband and wife are at once (in complete privacy) and there is nothing to obstruct / prevent the copulation or sexual union between the two. This privacy is a kin to sexual union.
There are three factors which may not allow copulation taking place,
These are (1) HISSI (sexual or sentimental) (2) TABA'EE (Physical) and (3) SHARA'EE (religious tenets).
(1) Prevention / obstacles in Khilwat-e-Saheeh or complete privacy for copulation from sensual / sentiment point of view. The husband is suffering from some ailment which does not permit the sexual union. And if the wife is suffering from disability (sickness) of such a nature that the sexual act will haram her. If her excuse is not of this nature then consummation can latter place.
(2) Physical obstacle, The presence of a small child who will tell others what be sees will not an obstacle.
(3) Obstacle from Shariat point of view. The woman may be in her menses or impurity after child birth or any of the two are with Ahram, or some one is keeping fast for failure in Ramzan. In the above noted circumstances the get together of the newly weds will not permissible or they should refrain till the obstacles are removed.
If in spite of these mentioned obstacle the couple meet one another for the sexual union then it will be defective or tresspassing copulation to known as `Khilwate Fasidah'.
PROBLEM:- If the boy who is not able to copulate with his wife or the girl because of her premature condition is can not respond then in both these cases the union will be an obstructed one.
PROBLEM:- If some thing occurs in the vagina (private part) of the woman which obstruct the copulation, then the meeting will not be taken as right union or Khilwate Saheeha.
PROBLEM:- If they meet at such a place where sexual union is not desirable, such as Masjid, public pass way or an open ground, then the act will not be a correct or permissible one.
PROBLEM:- If the man divorces his wife after valid copulation (without hindrance), then the full meher will have to be paid as Meher-e-Wajib, when the Nikah was correctly solemnized. In the event of Nikah was not in order (defective or fasid) then only with their meeting together meher will not wajib, unless sexual union has taken place in which case the Mehere Masal (normal meher) will be payable.
PROBLEM:- If no meher is fixed, but the Nikah and sexual meeting are both correct, then the normal meher will become binding.
Some more injunctions of rightful Union (Khilwate Saheeha)
PROBLEM:- (1) If the woman is divorced after a rightful union, then Iddat is wajib on her and in this Iddat it is incumbent that she be provided with maintenance necessities as well as the house to live. Even otherwise after the rightful Nikah, merely with the privacy the Iddat becomes wajib (essential) whether or not the privacy was in order. However in case of the improper Nikah, without intercourse no Iddat is essential.
(2) If he divorces after the rightful union, then so long as she is in Iddat he can not marry her sister.
(3) Nor he can have four wives in addition to his wife (now in Iddat)
(4) If he is free (not slave) he can not marry a slave girl during her Iddat.
(5) And he should divorce the woman with whom he had sexual union at that time which is permissible for a such woman.
(6) He can divorce her (as above) with but he can not restore sexual relations with her, nor in the event of
he can resume sexual relations with on account of the uninterrupted copulation.
(7) If the husband dies when she is in Iddat, she can not inherit his property.
(8) When the meher has been declared as inviolable, it can not be revoked, even if the separation comes from the woman's side.
PROBLEM:- Separation comes in between the husband, the man says sexual union has not place but the woman that there has been the (due) union, in this connection the statement of the woman will be accepted as reliable.
If the get together took place between, the woman and the man, but she could not be subdued by him, If she is virgin then full amount of Meher is due (wajib) and if she is not virgin then the established / fixed meher will not be due.
THE "FAULTY" NIKAH
If any prescribed condition is omitted in the Nikah it will not be appropriate or worth acceptance, for example, the nikah was solemnized without the witnesses, or two sister were given in the Nikah at the same time (with one and the same man), or he marries the sister of his wife during the course of her Iddat, or he marries a woman who is in some one else Iddat or he marries the fifth woman when the fourth wife is in Iddat or in her presence of a free (hurrah) wife he marries with a slave girl.
In all these cases the Nikah becomes invalid.
PROBLEM:- In the event of an invalid (fa'sid) nikah, the meher can not becomes wajib, unless these has been physical insertion (wati) in the sexual act, mere meeting together in uninterrupted privacy is not enough. If wati takes place, then the Meher Mis'l or customary meher is becomes due which should not exceed the fixed Meher, if the latter is more, then it shall be payable.
PROBLEM:- In the event of a faulty or incomplete Nikah, it is necessary for both (man and woman) to announce it annulment or cancellation (Fas'kh) not necessarily in presence of one another. If they can not do so, the Qazi should announce the cancellation of the Nikah .
When the separation has taken place or if the husband dies then Iddat is due provided then has been physical union. But in the case of a faulty or invalid Nikah also, the term of Iddat is three "menses" and not four months and 10 days.
PROBLEM:- In case of faulty nikah, the Iddat on account of separation is from the time of separation even if the woman may not be aware of this "separation" to become effective means that the should say with tongue " I have abandoned you, you may go, you marry" etc or she has herself gone from his house.
PROBLEM:- Although it is not necessary that at the announcement of separation, the woman should be there, but some one or the other should know this (and convey to the woman). If none knows (at all) then the full Iddat will not be complete.
PROBLEM:- In the event of an incomplete / invalid Nikah there is no provision of maintenance or alimony, even if has been agreed upon it will not be permissible.
PROBLEM:- The like Meher or Meher-similar (Meher-e-Misl) will be the amount fixed as Meher in the family) dynasty of the woman, like the meher of her sister paternal aunt, daughter of the uncle etc. The Meher of her own will not be Like-Meher if she belongs to another household.
The criteria in respect of Meher-e-Misl like/similar Meher) in respect of other woman are (1) Age (2) Beauty and (3) Wealthy, in which they are like one another (4) they live in the same city (5) belong to the same time (6) wisdom (7) sensibility (8) honesty (9) righteousness (10) knowledge and (11) culture, they almost like one another (12) both are virgins non virgins or (13) they are alike in not having children, the meher may be similar if they compare favourably differences of a noticeable nature will influence the meher accordingly (14) the conditions of husband has also a bearing as the meher of young man is different form that of an old man. These aspects / features are taken into account at the time of the marriage (nikah), difference arising later on will not be considered to modify the meher.
PROBLEM:- If there is no woman in her own family /dynasty for comparison are fixation of meher, then the case of another woman belonging to a known family may be taken into account.
PROBLEM:- For the confirmation of Meher-e-Misl (of like nature) the evidence of two men or one man and two women, reliable and sensible, is necessary. In the event of non availability of witnesses, the evidence of the husband, on oath will be permissible.
Meher by naming / entitlement (Meher Musamma)
They are of three kinds.
(1) Unknown or not predetermined determined things in respect of their variety or quality (Majhool-ul-Jins wal wasf), such as cloth, animal house or the pregnant she goat to give birth to a young or the fruits of a garden expected to be gathered or any such unpredictable thing. These can not be fixed as meher, but the meher to be fixed should be the like meher (mentioned above).
(2) Things of a known verity but unknown quality, such as slave, horse, cow or goat, in all these whatever is fixed as Meher should be of average quality or the price of an average person or nothing. This kind of meher (is known as Maloomul Jins wal Majhool ul wasf).
(3) The third of named meher (Mehre Musamma) is what is termed as `Maloom ul Jins wal Wasf (known verity and quality). In this connection whatever is determined is wajib.
Meher related to time sequence
There are three kinds of mehers in this category.
(1) MU'AJ'JAL (derived from the Arabic word 'UJLAT meaning haste) or instant payable.
(2) MU'WAJ'JAL (derived from the Arabic word AJ'AL, Time undetermined) the meher for which no time limit is fixed.
(3) MUTLAQ (Absolute and abstract of a general nature.)
The Mehere Mu'ajjal or instant meher is to be paid by the husband before entering into privacy. The Meher-e-Mu'wajjal or undeclared time limit can be paid any time on divorce or death. The Meher-e-Mut'laqa is neither of the two in entirely that is it can be part of this or that or both.
To receive the Meher-e-Mu'ajjal (instant meher) the woman can click her husband before sexual union or an attempt thereof. Even if the husband wants her company in a journey (after Nikah) she can refused to go unless the meher is paid to her. In the event of Mehre Mutlaq which consists of both the other two mehers, the woman can demanded the part of instant Meher so fixed or customary in her family, as a condition precedent to go on journey or permit sexual intercourse.
It is better to pay the Meher-e-Muj'wa'JJal (undeclared time limit as early as possible, to be free of this liability. Normally, this kind of Meher is paid at the time of divorce or on death. A part from divorce or death, the discretion is that of the man, the woman can not demand as a matter of right.
PROBLEM:- In the case of an underage or immature girl , If after the Nikah (with instant meher) has been solemnized and she is on her way to her bridegrooms residence (Rukhsati), but the mehere muajjal has not been paid, then her wali has a right to demand the meher before her going into the nu;ptial chamber and the husband can not do anything unless he pays the meher muajjal.
PROBLEM:- In the meher of time limit the woman can check her from further sexual union if she is not paid the amount in spite of her demand after the term is over.
PROBLEM:- In order to get the Meher-e-Mu'ajjal (instant Meher) if she refuses the sexual union, the claim for maintenance will not collapse and in that condition she can out even in a journey when it is necessary without the permission of her husband, but over she receives the meher-e-mu'ajjal, she can not go without permission, she can meet her parents once a week, for the whole day and to see blood-relations once a year, except the blood relations (Maharim) she can not go to any friends or other relations even on occasions of festivity or mourning, nor should her husband allow her in these cases. If he permits, both (the husband and the wife) will be sinners.
PROBLEM:- When the husband sends some thing to the house of his wife and calls it a `hadya' (present or gift) he can not call it meher. In the event of dispute the oath should be taken to settle it.
PROBLEM:- Whatever has been in the `Jahez' (dowry, a brides parapheronatia) can not be taken back by the husband can not be taken back by him. If the thing sent by him, is not by way of Meher and it still remains unutilized, she can return it and receive the Meher instead.
PROBLEM:- Nothing can be taken back from what has been given as Jahez even by the inheritors if the article was given in a state when death looks imminent (Marz-ul-Mant). The wife is the only heiress.
PROBLEM:- At the time of see-off (wida or rukhsati) of the bride if the people of the girl had taken something from the bridegroom or if the brides relative refuse to send her off without taking something and the groom pays off the same for taking her home, he can demand back his money / things or its price, as it is kind of bribery.
PROBLEM:- The husband gave Jahez to the girl and then says it was by way of borrowed article. If the girl or on her death the husband says that it was by way of possession (Tamleek). If it was a thing normally given in dowry (jahez) then it is the property of the girl. If however the thing contains both the aspects viz borrowed or loan nature as well as possession then the words of her father or heirs will be acceptable.
PROBLEM:- In a case where the girl's statement is trust worthy, if her father can produce evidence that he had given the thing as borrowed article and the witnesses corroborate him, then their evidence will be acceptable.
PROBLEM:- In a hose where both husband and wife live and where there are articles to which both lay their claims, then to decide the issue nature of the things will be taken into consideration. The articles which are exclusively of feminine brand such as head and shoulder wrapper (do-patta), dressing table, feminine dresses shall be given over to the woman. However, when the husband proves by evidence that these things belong to him, then these will be made over to him but when the woman brings witnesses to prove her possession, she shall in given the same (despite husbands claim / evidence). If one of them dies and the differences of the same nature erop up, then the issue will be decided as stated above. The things will be given to the one who uses them and not to the heirs. The merchandise of business will go to the man if he was carrying on the business of the same.
PROBLEM:- The father of an underage girl can claim the meher-e-muajjal and she is able for a sexual union, he can also demand her (to be allowed) to go with him. for this no criterion of age will be raised. If she is unable to have sexual intercourse, even if she has attained puberty, she can not be forced for a see-off (rukhsati).
THE NIKAH OF A KAFIR.
The kind of Nikah which is permissible among the Muslims, if the Kafirs (non-muslims) also do like was then it would be permissible. But there are some kinds of Nikah which is permissible among the Kafirs, but for the Muslims they are not valid. When (for example) the Nikah is defective of the absence of witnesses or the woman was in the Iddat of a Kafir and the Muslim marries her in that state. It is also conditional that the Non-muslim (kafirs) should approve of the Nikah between Muslim and non-muslim, according to their procedure and belief. If both the non-muslim man and woman become Muslims, their nikah of their former faith will continue and no change will be necessary. If however the matter goes to the Qazi, he will decide the issue (on merits) and shall not break the nikah.
PROBLEM:- If the Kafir marries a Mahrim (blood-relation which is haram in Islam) and it is permissible among them, then it will remain as such and other conditions of maintenance will also enforced, but they will not be heirs (inheritors) to one another. If later they both convert to Islam, or one accepts Islam, then the issue will be decided between them, provided both of them take their case before the Qazi. If only one party present his / her case, then no decision between them will be made as to their separation.
PROBLEM:- If the husband and husband belong to any other religion than revealed Christian or Jewish and any of them accepts Islam then the Qazi will present Islam before the other if he / she accepts Islam there remains no issue, but if the other refuses or maintains silence then the Qazi can dissolve the marriage, but before that he must ask three times before giving the decision of separation. If both belong to religion of Books and the man accepts Islam the woman will remain his wife as usual.
PROBLEM:- If a woman migrates to a Islamic state (Darul Islam) and if she accepts Islam or decides to remain as a Zimmi (under protection of the government on payment of Jizya), she is free to marry immediately provided she is not pregnant, in the latter case, after the child birth (delivery) but this period will not be counted towards her Iddat (on separation from her former husband).
PROBLEM:- If any of the Muslim husband and wife denounces / goes back on Islam, the Nikah gets dissolved automatically and immediately. It will not be a separation as a divorce, but it will an one right cancellation. If the woman has had sexual union, she can claim full meher. If she has remained "un sexed" and goes back on Islam, she gets nothing as Meher etc. If the husband becomes `murtid' (rejecter of faith), she claim half of the meher. If the woman rejects Islam and dies the muslim husband will receive the inheritance.
PROBLEM:- The woman an dthe man both become `murtid' and then both again embrace Islam, in such a situation the former Nikah does not remain intact. It of them becomes muslim, then the other (not simultaneously), even then the Nikah would get dissolved.
PROBLEM:- If the woman goes back on Islam (becomes murtid), she must be compelled to come back to Islam, and she should be kept under isolation till she dies or accepts Islam. In the latter case she be remarried (with a fresh Nikah) and the meher now fixed should be nominal or of very small amount.
PROBLEM:- If the woman utters the words of kufr in order to get released from her husband and marry another man to receive full meher, then in that event every Qazi will have powers to re-marry her with her former husband on a small meher, whether or not the woman agrees, further she will not have choice of marriage with any other man.
PROBLEM:- The child of a parent belonging to different religions, will be under the authority / guardianship whose religion is better such as if one is a fire worshiper and the other belonging to revealed religion, then they will go to the latter.
PROBLEM:- If the husband who is addicted to intoxication, and he utters words of kufr under the influence of intoxicant, the woman will not go out of his marriage bond, but it is advisable if a fresh nikah is solemnized.
FIXING `TURN' (Bari) BETWEEN WIVES
The Holy Prophet (Allah's grace and peace be upon him) has said that "if a man has two wives and he does not maintain equity between them, he will be raised on the Day of Judgment in such condition that one half of his body will be completely paralyzed.
PROBLEM:- If the man has two (or more) wives then it is binding on him to maintain justice and equity in matters which are in his power, such as the clothes, food, shelter etc. However in matter, concerning mostly emotional such as live, inclination towards one or other, he must pay due regard to others without causing heart burn etc. It is also not necessary that he must have equal sexual contracts with all.
PROBLEM:- As regards the sexual intercourse, it is at least once, binding (in order to have the consummation of Nikah or khilwate Saheeha) then after it is upto him to maintain this aspect as a matter of justice and equity, not so scarce so as to make the woman look at others to express her starved sentiments nor so frequent and unbridled so as to cause her harm physically or otherwise.
PROBLEM:- She has a single wife, but he is not so much inclined to her as he devotes his times in religions devotion and rituals. In that condition, the woman ask her husband to pay attention to her as will and the man should not ignore her so persistently. It is said in the Hadees:"Your wife has her rights on you." so much involvement in religious devotion, even at night, causes negligence of her "rights" the fulfillment of which is also binding on the husband. The judicious portion between husband and his devotion is reported to be according to Hadees, is four days for his wife and three days for devotional exercise / rituals etc.
PROBLEM:- All categories of woman in marriage have their rights for receiving the attention of their husbands, though the nature and quantum of attachment may very from woman to woman as from man to man, the wives may be classified as old and young, virgin and non virgin (having undergone sexual act), healthy and sick pregnant and not pregnant, the underage or girl fit and willing for sexual union with menses or with impurities of child birth, one with whom the one divorced with a returnable permission, known as Tilaq-raj'ee and be intends to return to her, the one with Ahram and hysteria affected woman but not likely to cause physical harm, All have their rights under the laws of shariat which must not be trespassed wantonly, all must have their "turns" and the none should be deposed with or ignored under one pretext or other.
PROBLEM:- If there be two woman, one Free (not a slave girl) and the other a slave girl, then for the independent and free woman, her husband should have two days and two nights and for the slave girl one day and one night. The slave girl who is no one's possession, she has her own choice, there is no fixed "turn" for her.
PROBLEM:- In "turn" in this context means `visit at night', therefore the man can not go to "visit" another wife without any reason or his own free will. However he can go during day time for some necessity. If the other wife (out of turn) is sick, the husband may go to her to enquire about her health. If she is seriously ill, he can also stay will her at night. In this connection, it must be remembered that except for the day fixed as a turn, the husband can not visit another wife during daytime for sexual intercourse.
PROBLEM:- It is open to the man to fix alternate days for turn, or three days at a stretch for each one or even a full week for each turn by turn.
PROBLEM:- There is no turn for any one while the husband intends to go on journey. He can take any one he likes, however it is advisable to cast a draw comes not should be taken as companion on the journey. One return, other woman can not claim that they should also be given as most time as the other had remained one, on coming back home, fresh days of `turn' shall be fixed. `journey' in this case means some religious journey. To go abroad for stay in other places / travel under this injunction.
PROBLEM:- The woman can give her `turn' as a voluntary gift (hibah) to another woman (co-wife or rival)). She can also take back her voluntary gift.
PROBLEM:- Fore - play like kissing, embracing, sexual act etc with every woman (wife) in the same proportion is desirable (mus'ta'jub) but not wajib (essential).
THE RIGHTS OF HUSBAND AND WIFE
Often the scuffle and disagreement between man and wife occur because there mutual rights are not open heatedly observed. If at one place the Holy Quran affirms the superiority of men over women in the famous verse;
(Men have domination over women [Nisa 4=V]), at another place it also reminds and stresses upon the menfolk (live with women in a well spelt out manner [Baqarah 2=V]), which also means in an equitable and just manner, without usurping their right in a heavy handed manner. If right and privileges of both the consorts are maintained and safeguarded scrupulously, most of the internal fends and skirmishes in and outside the family fold can be avoided and the life can be lived in a satisfactory and contented manner. Below the commands mentioned in Ahadees of the Holy Porphet (Allah's grace and peace be on him) are given for general guidance so as to ensure peace and harmony in the family life of muslim fraternity.
RIGHTS OF MEN OVER WOMEN.
The Holy Prophet (Allah's peace and grace be on him) has said: On woman devolves most the observance by her of the rights that are due in favour of her husband among the men-folk, and on man the rights of his mother are fore-most in the line of his behaviors and deeds.
He said: If I were to command any one for prostration I would have asked the wife to prostrate before her husband.
The Holy Prophet (Allah's peace and grace be upon him) has said: By Allah! A woman can not fulfill her obligations (duties) to Allah, unless be fulfills her obligations (duties) towards her husband.
He has said: When a husband calls, his wife (at night) to come up to him and she refuses, whereupon the man in anger and anguish spends the night, the angels cast curses on her till the morning. It is also said by him that so long a husbands remains angry against his wife, Allah the Almighty also remains angry with her.
He also said the woman should not check herself from (the desires of ) her husband, and except for Farz Fasting, she should not observe any fast against the wishes of and without the permission of her husband. It will be a sin if she stills kept the fast. Without the permission and consent of her husband, no good deeds of her will receive approval of Almighty Allah. If she does any good deed without the permission of her husband, the reward there of shall go to the husband and the blame will be her lot.
Without the consent of her husband the woman should not go out, from his home, and if she goes, then so long as she does not offer repentance (taubah) the angels will continue cursing her. On this some one asked, even if the husband is a tyrant? and he replied `yes! even if he is a tyrant.
The Holy Prophet (Allah's peace and grace be upon him) has said,`if the woman dies when the husband was pleased with her, she will be admitted in the Paradise.'. He said, every permissible thing (mabta'h) which the forbids, it is binding on her to comply.
PROBLEM:- When the husband desires his wife to have make-up to beautify herself but she does listen and when he call her to come up to him and she keeps aloof, then the husband has a right to beat her, And if she persistently refuses to offer prayers (Namaz) on her husband's bidding, then in such an event the divorce will be justified.
PROBLEM:- If the woman has any problem (query) to solve. She should ask her husband and if he i unable to tackle he may seek the help of some scholar, but the woman need not go to him. If he however no such arrangement is possible, then she can go to the scholar (religious) herself.
PROBLEM:- If the father of the woman is invalid and there is non to look after him, then in such a condition she can go and assist her father, even if her husband does not allow her.
RIGHTS OF THE WIFE ON HER HUSBAND.
Apart from `meher', the provision of food, clothing and shelter and other necessities is the responsibility of her husband. He must display amiable and courteous behaviour towards her and try to keep her satisfied and please, so that she may in the like manner this maintaining a congenial atmosphere in the house. He should not resort to beating and abusing for trifle matters. The Holy Prophet (Allah's grace and peace be upon him) has said: "Among you those are good (and praise worthy) whose behaviour and treatment towards their consorts is of polite and gentle disposition".
He has said that a musalman must not keep his believing woman a detested and hated (or in other words, he must not look down upon for small faults and things which are beyond her control to mind.) If she has something undesirable, surely, she must have many virtues and qualities which compensate the pitfalls. The man must not concentrate on her `faults' alone, rather he must keep her virtues before him. So that unpleasant sentiments are not aroused against her. He must no beat his wife as one beats a slave, after he has go to her for satisfaction of her sexual urge!.
The Marriage / Wedding Ceremonies.
In a marriage / wedding now a days many kinds of ceremonies are observed in order to demonstrate their pleasure of marrying their son/daughter. The joy is natural and it should be celebrated in a natural joyous manner. But unfortunately and ostentation and outward display of one's richness, even if it is on borrowed money. Which becomes almost a life-long curse, the real spirit of thanks giving and gratitude to Almighty Allah has been pushed back to a secondary position. with the result that all these occasions of festivities are devoid of Islamic solemnity and as such the pristine pure pleasure which ought to be the prize of providential benevolence is seldom seen operative behind every display of power and position on these occasions.
Almost every marriage / wedding in the sub-continent country among the Muslim, looks like of puck of rituals and ceremonies which have come down from ancestors. The tragic aspect of these weddings is that as the time passes, more and more superfluous ceremonies are added, while at the core nothing but hollow show of pleasantries dominate the seen which soon depart as the `honourable guests' leave the wedding spot, with criticisms / objections on different scores though it is primarily for these guest alone that this burden some lavish extravaganza is staged.
Reverting to what the real issue and how far they respond to Islamic tenets the summoned version of these viccue points are given below:
Mostly the marriages are based on age long conventions with varying to fund out how far these conventional displays have religious sanction whith them. At times these custom/convention touch the borders of haram and halal. But the urge and the force of age long customs and ceremonies is so great that these actually become the very test and trial of one's prestige and ego that any default or shortcoming in this behalf would become source of taunts and criticism by other self worshipers.
As it is said earlier all possible effort are made to comply with minute details even at the cost of loans/borrowings etc if the money at home falls short of requirements, in spite of the fact that afterwards a long time will be taken to repay these loans. This is simply in Islam causing untold hardships and miserable to all concerned. It is also a fact that no loans / borrowing could be obtained without the payment of "Interest" (sood) for which new and modern names are given. It is a dual curse that the interest can not be avoided while taxing the loans and also when paying the loans. The issue becomes more tragic when it is realized that all these impermissible liabilities have to be borne for the sake of custom/conventions/ceremonies are more of extravagant nature that the bare necessities. Which are in tune with Islamic injunctions.
Some of frivolous and uncalled for activities which are followed as essential concomitarats are listed below. Needless that most of ceremonied etc are against the Islamic tenets but people concerned seldom care to have a second thinking about it.
(1) In the list of ceremonies singing (and at times dancing) by young girls on each occasion of festivities / ceremonies. The themes of those songs are mostly romantic which seem to arouse youthful sentiments which, on occasion, become sources of unbundled overtures in these raw minds.
(2) There used to be among the upholders of conventions who hold night long singing sessions known as "Rat-Jaga" (keeping awake by night!) in which the middle aged ladies also take part and at the near-end of the night to proceed to a nearby masjid with lighted chiraghs as an omen of brightness in the coming years of the marrying couples.
(3) At places fire works and gun-shots displays are also arranged to thrill and amuse the guests and by stand.
(4) Now a days some more ceremonies have been introduced, which although in a sense, are the replied of the old customs such as Mendhi, have become occasions of show of extravaganza on both the sides costing heavily on their limited resources. What is more objectionable in such a ceremony that there is an open competition of songs and dances by young boys and girls, each forming a challenging party to outwit and outclass the other party! This gives way , at times, to express their romantic impulse into `friendship' and later completions in family relations.
These are some of major will known ceremonies which have common features in almost the marriages / weddings in rural and urban areas. If we examine their justification as part of marry making because such occasions are to be taken as entering into a new and full of hopes brand of life and as such there ought to be the expressions of joy and festivity, but all these should be managed with a sense of moderation, and lavishness leads to satanic impulses and acts which are manifestly haram in the Shariat.
Friday, August 5, 2016
Copied from: http://www.alahazrat.net/islam/nikah-qanoon-e-shariat.php
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