CONTRACTING A PERMANENT MARRIAGE
The permanent marriage ‘aqd ad-dā’im consists of the recital of the formula (sīgha) which contain the assent (ījāb) of the bride and the acceptance (qabūl) of the bridegroom. For the marriage to be valid the mere consent of the two parties is not enough, the marriage contract must be performed.
Either the formula can be recited by the man and woman themselves or they can deputize another or others to be their representative(s) (wakīl). It must be read in correct Arabic, other-wise the contract is void; so if it is impossible for the man and woman to do this, they have to appoint someone who knows Arabic. However, if no such person is available, they are permitted to pronounce it in any language, but it must convey the sense of assent and acceptance on the part of the bride and the bridegroom respectively.
One who is reciting the ‘aqd formula should be a sane, adult, practicing Muslim. The reciter must have the solemn intention of reciting it for marriage, and the bride and bridegroom must be specified. There may be a representative for each of the bride and groom, or one person can recite the formula as the representative of both bride and bridegroom, and the representative can be either male or female, but it is recommended that the ‘aqd formula should be performed by two righteous persons, one representing the brige and the other the bridegroom.
THE PERMANENT MARRIAGE RITE WITH TWO REPRESENTATIVES
First of all the representative of the bride and the representative of the bridegroom should seek the permission of the two and ask them whether they consent to be married with the other for the agreed amount of dower (mahr). The representative of the bride should also seek the permission of the father or grandfather of the bride, if she is a virgin. Then the two representatives should sit together, usually in a gathering where the guests and members of the two families are present. It is recommended that first of all the representative of the bride should recite a sermon (khutba) which takes the subject of the importance of marriage in Islam.
Bi-’smi’llāh r-rahmāni r-rahīm. Al-hamdu li-’llāhi iqrāran bi-ni’mati-hī wa-lā ilāha illa ’llāhu ikhlāsan li-wahdatīyati-hī wa-salla ’llahu ‘alā Muhammadin sayyidi barīyati-hī wa- ‘ala l-asfiyā min ‘itrati-hī. Ammā ba‘du fa-qad kāna min fadli’llahi ‘ala l-anāmi an aghnā-hum bi-l-halāli ‘an l-harāmi fa-qāla subhāna-hu wa-tãāla wa-ankihu l-ayāmā min-kum wa-s-sālihīna min ‘ibādi-kum wa-imāì-kumi iy yakūnū fuqarāì yugni-himu ’llahu min fadli-hī wa- ’llahu wasi‘un ‘alīm. Waqāla rasūlu ’llāhi salla ’llahu ‘alay-hi wa-sallam, tanākahū wa-tanāsalū takthurū fa-inn-ī ubāhī bi kumu l-umuma yawma l-qiyāmati wa-law bi-s-siqt. Wa-qāl, al-nikāhu min sunnat-ī fa-man raghiba ‘an sunnat-ī fa-laysa min-nī. Wa-salla ’llahu ‘ala Muhammadiw wa-āli-hi t-tāhirīn.
In the name of God, the Merciful, the Compassionate. Praise be to God, in avowal of His blessings. There is no God but Allah, in sincere devotion to His oneness. May God bless Muhammad, the master of His creation, and the pure ones from His household. It is from the grace of God upon mankind that he has guarded them through what is legal from what is legal from what is illegal. He, may He be glorified and exalted, has said: Marry those among you who are single, or the virtuous ones among your slaves, male or female; if they are in poverty, God will give them means out of his grace; for God is All-encompassing, All-knowing (24:32). And the Messenger of God, may God bless him and grant him peace, has said: ‘Marry and beget offspring; multiply, so that I may be proud of you before the nations, even through a miscarried foetus.’ And he said: ‘Marriage is part of my practice, and he who dislikes my practice is not from me.’ May God bless Muhammad and his Family, the Noble, the Pure.
After the sermon the main rite of marriage begins. Given here is the minimum that must be recited, as it appears in the risālas of the mujtahids. The representative of the bride says:
زَوَّجْتُ مُوَكِّلَتِىْ بِمُوَكِّلِكَ عَلَى الصِّدَاقِ الْمَعْلُوْمِ0
Zawwajtu-ka muwakkilat-ī….(name of the bride)
muwakkila-ka…..(name of bridegroom) ‘ala s-sadāqi l-ma ‘lūm.
I marry my client,……(name of the bride) to your client,….(name of bridegroom) for the dower that was agreed.
The representative of the bridegroom answers immediately:
قَبِلْتُ التَّزْوِيْجَ لِمُوَكِّلِىْ عَلَى الصِّدَاقِ الْمَعْلُوْم
Qabiltu t-tazwīja li-muwakkil- ….(name of the bridegroom) ‘alas-sadāqi l-ma‘luma.
I accept on behalf of my client. …(name of bridegroom) for the dower that was agreed.
The marriage is now complete and the man and woman become lawful to each other. It should be noted that assent on the part of the bride’s wakil, and the acceptance on the part of the bridegroom’s representative even once is enough; the phrasea are repeated with a change of words five times merely as a recommended precaution.
THE PERMANENT MARRIAGE RITE WITH NO REPRESENTATIVES
The rite for a man and a woman do not want to engage representative for the recitation of the formula of ‘aqd is as follows:
The bride says: زَوَّجْتُكَ نَفْسِىْ عَلَىالْمَهْرِ الْمَعْلُوْمِ Zawwajtu-ka nafsī ‘ala ’l-mahri ’l-ma‘lūm.
I have married mayself to you for the dower that was agreed.
The bridegroom answers: قَبِلْتُ التَّزْوِيْجَQabiltu t-tazwīj. I accept the marriage.
SOME REASONS FOR THE ABROGATION OF A PERMANENT MARRIAGE
There are some situation in which the bride or bridegroom can abrogate the marriage and separate without any divorce. The following list contains some of the defects which, if a man finds them in the woman he married when he had not been informed about them before the marriage, entitle him to abrogate the marriage:
Insanity, blindness,certain sexual abnormalities, paralysis, leprosy, leucoderma, and other similar defects.
Likewise, the woman can abrogate the marriage if, among other things: 1)she comes to know after marriage that her husband had been insane before the marriage, 2)the husband becomes insane after the marriage 3)the husband is impotent.
PRECEPTS REGARDING DOWER (MAHR)
The mahr (or sadāq) is the obligatory wedding-gift which the bridegroom undertakes to give the bride. It is a token of friendship, a mark of honour for the woman, and security for her. It becomes the property of the wife and she has full rights to dispose of it as she likes (see, e.g. Qur’ān 4:24, 25,34).
Anything which has value can be given as dower, and there is no specified amount. It should not be so high as to be beyond the financial status of the husband; it may be given at, or immediately after, the marriage, or at any time later on; it may be paid in one or several instalments. The woman has the right to allow the husband to have sexual intercourse with her without taking the dower.
Marriage: A Legal Contract
Since marriage is a binding contract (‘aqd) in the Islamic laws (the shari‘a), it depends on three essential conditions:
1. the proposal from the bride;2. and the acceptance from the groom; 3. and the mahr.
Mahr means the consideration that the groom agrees to give to the bride. (See 4:4) It is the right of the bride and it is for her to specify or fix the mahr. The groom may either accept it or negotiate with her until they reach to an agreement. Mahr is not a price being paid for the lady; it does not mean buying a wife. It is a symbolic gesture of man’s true love for the woman whom he intends to marry. It doesn’t have to be monetary or material; it can even be a service (e.g., teaching the Qur’an or provided for higher education or paying for the hajj, the pilgrimage to Mecca , etc). Moreover, the mahr can be immediate or deferred or partly immediate and partly deferred as agreed by both parties.
Besides the three conditions mentioned above, there are no more essential conditions attached to the Islamic marriage contract.
However, like any other contract (‘aqd), there is room for optional conditions in the marriage contract as well.
The concept of optional conditions is not an innovation or “a revolutionary concept;” it has existed in the shari‘a laws from the earliest days. Of course, its application in marriage contract has gained popularity in modern times. Shi‘i scholars of the early days of ghaybat, like Shaykh at-Tusi (d. 460 AH) in his an-Nih.yah, al-Khil.f and al- Mabsut, as well as of the later days, like Sayyid Muhsin al-Hakim (d. 1969) in Minh.ju ’s- S.lihiyn, have discussed the concept of “shart dhimn al-‘aqd – a condition attached to the contract.”
Even the marriage contracts of India and Pakistan had provision for “s.’ir shurut—other
conditions” which, nonetheless, was left blank by most couples.
By looking at the problems facing Muslims of our time, te contemporary mujtahidin have
started highlighting the issue of optional conditions in the marriage contract. In the Islamic Republic of Iran, for example, marriage certificate comes in a booklet form with optional conditions printed within it for the bride and the groom to sign on the dotted lines after each condition if they wish to include it in their marriage contract.
Why Optional Conditions?
The imams of the Islamic centres, the Muslim counselors and social workers have observed that some men abuse the rights given to them in marriage relationship. In order to prevent such situations and equip women with mechanism within the parameters of shari‘a laws, we have started recommending to potential brides and grooms to add a few conditions to their marriage contract. Both parties can put whatever conditions they agree upon except a condition which goes against the shari‘a laws.
The conditions that we recommend are mostly related to the right of divorce and division of property at the time of divorce.
1st Example: The Right of Divorce
Although marriage is sacred in Islam, it is also dissolvable. Divorce is allowed but as the last solution.
However, the right of divorce has been given to the husband.
If a situation arises where the wife does not want to continue with the abusive elationship and the husband does not agree to give divorce, then the woman is stuck in that marriage. The Qur’an is very clear that “either retain your wife in goodness or release them with kindness.” There is no third option where a woman is just left “suspended, neither married nor divorced.” Imam Ja‘far as-S.diq (a.s.) said, “When a man intends to marry a
woman, he should say, ‘I pledge by the covenant that All.h has taken to retain [my wife] in goodness or to release [her] with kindness.’” However, there are certain men who do exactly the opposite—they leave their wives suspended. How does the Muslim community deal with such situations? There are a variety of pressures which could be brought to bear upon the husband to divorce his wife:
(2) extended family;
(3) community elders.
As a last resort, the woman could approach (4) the mujtahid (a Shi‘a jurist) or his representative to intervene; and if he is convinced that the husband is being unjust, then he has the power to serve a notice to the husband and ask for his consent to divorce the wife. If the husband refuses, then the mujtahid can dissolve the marriage and pronounce the divorce even without the husband’s consent. In Canada , however, not all families have the extended family support to put such pressure; nor do we have a mechanism as a community (e.g., excommunication) to censure the man who is treating his wife unjustly. The only option is to approach the mujtahid; but that process, like any other judicial process, takes its own due time.
In order to make things easy and fast in solving such marital problems where an abusive husband is refusing to give divorce, we encourage the couples, at the time of marriage, to add certain optional conditions to the marriage contract as seen below:
The husband gives an irrevocable authorization to the wife to appoint someone as his representative ( w a k i l ) for divorcing her, after seeking approval of the resident ‘alim* or her father* or her brother,* in the following cases:
1. if the husband marries another woman without permission of the wife named in this marriage contract;
2. if the husband ill treats and or physically abuses the wife to such an extent that it becomes extremely difficult for the wife to continue the marital relationship;
3. if the husband abandons the wife and does not provide for her for more than six months continuously;
4. if the husband divorces his wife in the civil court but refuses to give her the religious divorce.
* These are various options in order to prevent emotions from clouding the decision-making process on this serious matter of life.
The first condition might seem to be against the shari‘a law which allows polygamy; but it is not so. The condition does not prevent the husband from marrying a second wife; it gives a right of divorce to the first wife if she wants to disengage herself from this triangle relationship.
By putting these conditions as part of the religious marriage contract, it becomes easier for women to get divorce when they are faced with such situations.
2nd Example: Property Distribution:
From the shari‘a point of view, at the time of divorce, the wife is entitled to:
1. Mahr, if not already paid.
2. Her own property or belongings which she brought with herself at the time of marriage or whatever she acquired by way of earning or gifts or inheritance, etc.
In case of divorce, this leaves many women, especially the housewives, without any financial support. Unfortunately, the secular society as well as the Muslim community does not recognize the contributions of the “housewife.” Women’s liberation movement has degraded the status of the mother and the housewife as opposed to a “career woman.” Her hard work in managing the household, and rearing of healthy and good children who grow up to be productive citizens is not adequately recognized or appreciated even by her peers in the women’s liberation movement. The evolution of her title from “housewife” to “homemaker” has not yet elevated the status of the wife who chooses to stay at home, especially after the birth of her child.
From the Islamic point of view, a wife is not legally required to do the household chores and take care of her own children; it is the husband’s duty to provide for his wife and children. However, on a moral level, the wife is expected to help the husband in managing the household and taking care of the children. This difference on the legal and moral levels is so that a husband shouldn’t think of his wife as a slave or a servant; he should appreciate the contribution of his wife in his life. That is the true partnership in marriage.
It is in this background that we propose the following condition in the marriage contract which provides for some financial compensation for the wife if the husband initiates the divorce.If the husband initiates the divorce, then the husband will give to his wife one-forth (or
one-third or half*) of all the possessions that he acquired during the marriage period. In case of dispute about the cause for divorce, the Shi‘a Ithn.-‘ashari religious authority (the resident ‘.lim or the marriage committee or the arbitration board) will determine whether the divorce was initiated by the husband or the wife. * One-forth or one-third or half are various options that both parties can agree upon.Such a condition will hopefully discourage some brides from asking for exorbitant amount in the deferred mahr as a financial security. Let the mahr be a true consideration from the groom to the bride, and not a financial security certificate for after divorce.Muslims, women and men alike, must realize that getting anything from one’s spouse in form of spousal support or alimony through civil courts will not make it legitimate from the religious point of view. It will be considered ghasbi, usurpation.Such spousal support or alimony can become religiously legitimate only if the issue of division of property was included in the Islamic marriage contract. It must be clarified that the issue of child support is different from the spousal support issue: a father is still responsible for providing for the child even when the mother has the custody.