ULUĞ BEY’S CHARTS
OF LUNAR MONTHS
12 – MARRIAGE (NIKÂH) IN ISLAM
To have a nikâh means to get married, and tatlîq means to divorce.
In the book Manâhij-ul-ibâd, the Islamic nikâh is explained as follows:
The seventh chapter of this book covers the etiquettes of nikâh. The information on marriage sometimes varies because people, times and situations are not always the same. For this reason, while there are nass (âyats and hadîths) and ahbâr (reports, narrations) encouraging marriage, there are also others favoring bachelorhood. The times and states of the Ashâb al-kirâm and Tâbi’în demonstrate that in their time it was best to get married. There were three reasons for this:
The first reason: During the time of Hadrat Muhammad Mustafâ ‘sallallâhu alaihi wa sallam’, Christianity was prevalent throughout the world. Since Îsâ ‘alaihissalâm’ was equipped with spirituality, bachelorhood, being alone and leading a solitary life in seclusion were more appropriate for the times and conditions of his ummat and for his companions. Priests were ordering everyone to become monks and to lead a solitary life. They presumed that approaching Allâhu ta’âlâ and being in His way could only be achieved by living alone and by not getting married.
Hadrat Muhammad Mustafâ ‘sallallâhu alaihi wa sallam’ possessed all spiritual and material realities and superiorities; hence, being alone or being together with others, being single or getting married are all useful for his Ashâb and for his Ummat. Therefore, both ways are appropriate for his Ummat, the moderate way being preferable. Since priests were ordering everyone to live like monks and to abstain from marriage, the Prophet Muhammad Mustafâ ’sallallâhu alaihi wa sallam’, in order to terminate this way of life, prohibited his Ashâb (Companions) to live a bachelor life, by saying, “Islam does not contain monkhood.” He also said in another hadîth, “Getting married is my sunnat; whoever does not follow my sunnat is not one of my Ummat.” Numerous similar hadîths annihilated the wrong ideas imposed on the minds of people. Also the thought of “Allâhu ta’ala can only be approached by living like a monk” was removed from the hearts. People who lived during the first two hundred years, which was the time of the Ashâb al-kirâm and the Tabi’în ‘radiy-Allâhu ta’âlâ ’alaihim ajma’în’ knew that these hadîths were said in order to refute the wrong allegations of priests. When this era was over, different hadîth-i-sherîfs were emphasized. These hadîths informed us that there are good aspects to bachelorhood and to married life depending on the special situations of those involved. Rasûl ‘alaihissalâm’ said, “After two hundred years, the best of you is the one who is hafîfulhâz.” When he was asked the meaning of hafîfulhâz he said, “The person who has no wife or child.”
Great scholars like Bishr al-Hâfî, Bâyazîd al-Bistâmî and Abul-Huseyn Nûrî were all bachelors. This hadîth-i-sherîf reveals the honor and superiority of these great scholars and those like them who lived two hundred years after the Hijrat.
The second reason: The Ashâb al-kirâm, Tabi’în and Taba al-tabi’în lived in the best of times; thus, their belief (îmân), patience (sabr), asceticism (zuhd), and tawakkul were very strong and valuable. The following hadîth-i-sherîf praises them by saying, “The best of times is my era. Then the time which is next to mine. Then the Muslims of the era next to them. Following these, lying will become a widespread practice. (Some) people will bear false witness even without being asked to do so.” The nafs of these great personalities would not attach themselves to the means which the Sharî’at disliked, and would not incline to earn through ways of harâm because they increased their tawakkul, zuhd, and ridâ (consent) by being close to Rasûlullah ’sallallâhu alaihi wa sallam’, and by attending his sohbat. However, later generations could not be like them.
The third reason: Hadrat Muhammad Mustafâ ‘sallallâhu alaihi wa sallam’ knew through the nûr (light) of prophethood and through the correct firâsat (intuition) that the religion of Islam would be spread throughout the world by the Ashâb al-kirâm, Tabi’în and Taba al-Tabi’în ’radiy Allâhu ta’âlâ anhum ajma’în.’ He encouraged marriage so that those who would spread the religion of Islam throughout the world, and those with whom the Islamic religion would be strenghthened, would multiply.
For these three reasons, marriage was necessary during the time of the Ashâb al-kirâm, Tabi’în and Taba al-Tabi’în ‘alaihimurrîdwân.’ It was also proper to be single for people who came after them; therefore, when Sufyân al-Sawri ‘rahmatullâhi aleyh’ heard the above-mentioned hadîth, he said, “Wallah, it is halâl to be single in this time.” When they asked Bishr al-Hâfî the reason for his being unmarried, he answered, “I have such a nafs that firstly I am trying to divorce it. How can I add another one to it?”
Today likelihood of earning through ways of halâl has decreased. It is now very difficult to protect oneself from the harâms. It is neither suitable for the aql (wisdom) nor for the dîn (religion) to drag someone else into harâms. Nevertheless, if one’s lust becomes uncontrollable, one should try to reduce its intensity by fasting. If one cannot decrease its strength by fasting then marriage becomes obligatory (fard) for him. [If one is afraid of being cruel to one’s wife, it will be tahrîm makrûh for one to get married. Also people who are in danger of being deceived and led to harâms by their nafs when they are among lowly women who do not cover themselves and who expose their private parts to men, should get married. It becomes fard (obligatory) for this type of person to find a chaste Muslim girl and marry her. Youngsters who are not desperate such as the above-mentioned people for marriage, first should strive hard to obtain knowledge and good morals. Then they should learn the knowledge which pertains to the menstruation period of women (Hayz), and the knowledge which covers the time that is right after the birth of a child (Nifâs) and then they should get married.] The appropriate time for marriage for a Muslim man is when he learns the Sharî’at, and when he trains his nafs on how to obey the Sharî’at, and when he acquires good moral conduct and becomes a nice-tempered person, and also, when he improves his wisdom. After fulfilling all these conditions, he should marry a girl who has manners, modesty, and good moral conduct, sufficient Islamic knowledge, and who is obedient to the Sharî’at and who covers herself compatibly with the Sharî’at when she goes out. One should look for a girl who has chastity and who cares for her religion. One should not hold wealth or beauty as a prerequisite. One also should not overlook the chastity and goodness of a woman for the sake of money or beauty. In a hadîth-i-sherîf Rasulullah ‘sallallâhu alaihi wa sallam’ said, “One marries a woman either for her money or for her beauty or for her religion (her piety). You choose the one who is religious. A person who marries because of her money will not be able to possess her money; a person who only marries for her beauty will be deprived of her beauty.” It would be the ideal if one can find a girl who is beautiful and pious. It is not permissible for a Muslim girl to marry a man who is a disbeliever. When she intends to marry him, she becomes an apostate. In fact, two disbelievers will have been married. They both should become Muslims and renew their nikâh.
Seeing the girl before the nikâh is a sunnat; also it will facilitate a good relationship between the mates during marriage. One should search for a sâliha (pious) woman who has good manners, who has a noble ancestry, and who is also fertile. There is a saying which states that a man should avoid four types of women:
1 - A divorced woman who lived comfortably with her former husband and now is longing for those days and recollecting them.
2 - One should not marry a girl with brags about her money, rank or father.
3 - One should not marry a girl who will distribute her husband’s property among her own relatives or acquaintances.
4 - One should avoid marrying to a woman who has the reputation of being immodest and who would cause scandals.
A hadîth-i-sherîf which states, “Do not smell roses that grow on a dunghills,” commands us not to marry a base and immoral person. [A young man married a girl in Bukhâra (a city in central Asia). The first night the bride asked the groom if he had learned the knowledge of hayz (menstruation). The young man answered in the negative. The bride then said, “Allâhu ta’âlâ orders ‘Protect yourself and those under your command from Hell-fire!’ How can an ignorant man protect them?” The young man liked her statement so much that he entrusted his bride to Allâhu ta’âlâ and departed to study. He studied at Marw for fifteen years. He also studied under Imam al-Muhammad ‘rahmatullâhi ta’âlâ ’aleyh’. He then memorized everything in six years, and came back to his wife as an âlim (scholar). His teacher named him as Abû Hafs al-Kabir rahmatullâhi ta’âlâ ’aleyh.’]
A person who desires to get married should perform istihâra several times; then, he should trust himself to Allâhu ta’âlâ and ask His help to protect him from being interfered with and deceived by his nafs and by base people.
One should strive to perform the nikâh in agreement with the four Madhhabs. For making a valid and correct nikâh according to Shâfi’î, Hanbalî and Mâlikî Madhhabs, the first condition is that the walî of the girl has to give permission to her even if she is beyond the age of puberty. ‘Friend’ is the lexical meaning for the word ‘walî’. If it is used in the subject of Aqâid (belief), it means ârif-i billah. If it is used in the subject of Fiqh then it means a (grown-up) male relative. According to these three Madhhabs the walî is one’s father. If you do not have a father, then the walî is your father’s father, and after that the walî is your paternal great grandfather. If you do not have paternal fathers, then your walî is your brother. If you do not have a brother, either, then the walî is your brother’s son, next to whom is his son. If you do not have any of these, then your walî is your uncle. If you do not have that one either then the walî is your uncle’s son and after that your uncle’s grandson. If you do not have any of these relatives then your walî will be the judge. [The judge has to be a person who obeys the Sharî’at and who leads a life agreeable with the laws of Allâhu ta’âla]. The order of being a walî in matters of marriage is the same as its order in matters of inheritance after death. However, according to the Sâfi’î Madhhab, the son and son’s son cannot be a walî. According to Imâm al-Muhammad and Hanbalî Madhhab, after the paternal fathers the son and then the son’s son will become a walî. According to the Shaikhayn (Imâm A’zam and Imâm Abû Yûsuf), the son and the son’s son will become the walî before the paternal fathers. In Hanafî Madhhab the consent of a walî is not a must-condition for the marriage of a girl who has exceeded the age of puberty. It is mustahab before the nikâh to ask for the permission of a girl who has passed the age of puberty. The person to whom she gives her permission becomes her wakîl. If the nikâh is performed without her permission, she is free to accept or to reject it. If she rejects it, the nikâh becomes void. A woman can get married either by herself or by her wakil or by her walî. [In Hanafî Madhhab, orphans who do not have male walîs can get married through their mothers.]
The second condition of nikâh: It is necessary in Hanafî Madhhab to have two Muslim witnesses [even if they are known to be sinners] while making an offer and acceptance. Two Muslim men or one Muslim man and two Muslim women who have already reached the age of puberty should be ready at that moment and they should hear the offer and the acceptance. In Shâfi’î and Hanbalî Madhhabs witnesses must be males and they should not have publicly known sins. In Hanafî Madhhab beside the wakîl or the walî one man and two women can also be witnesses. In Maliki Madhhab a witness is not necessary but the walî must be present at the nikâh and the nikâh must be announced, and acquaintainces must be informed about the nikâh.
The third condition of nikâh: This condition covers the offer and its acceptance. In other words, a contract of marriage should be made. In Shâfi’î and Hanbalî Madhhabs the marriage contract is agreed upon between two men. One of the two men is the groom or his wakîl, and the other one is the bride’s walî or wakîl. They make a marriage contract by saying such words as nikâh, husband, or wife, or by saying similar words that are used for this purpose. In these two Madhhabs if the bride is not a virgin, then her permission also is needed.
It is written in the book Ni’mat-i islâm: “In Hanafî Madhhab a woman and a man who are free and beyond the age of puberty can get married by themselves in the presence of two witnesses. Their nikâh can also be performed in the presence of one of them and by the wakîl of the other party, or by the wakîls of both parties. The wakîl has to be a wise Muslim with an ability to distinguish right from wrong but need not to be a male or be at the age of puberty. When one appoints someone as one’s wakîl, one does not need any witnesses. For this, first the wife gives her proxy (wakâlat) for renewing the nikâh on her behalf to her husband by saying, “Whenever you divorce me, I have authorized you as my wakîl to marry me to yourself,” and then if the husband accepts her proxy; when he divorces her with one bâin talâq[39] he says “I have married so and so, (saying the name of his wife), to myself, whom I divorced earlier,” in the presence of two witnesses, his nikâh becomes sahîh again. [The famous renewal of the imân and nikâh of the whole jamâ’at by the recitation of a duâ (prayer) by the individuals who make up that jamâ’at is based on this fatwâ.] When both the person and his wakîl are present during the nikâh, the wakîl becomes a witness; likewise, when the bride and her walî are both present at the nikâh her walî becomes a witness. When a father marries his daughter to someone in her absence without informing her and without a mahr and tells her later on about it, if she stays silent, the nikâh becomes sahîh and it is necessary to give her a Mahr al-mithl. A person can be a walî or wakîl of both parties, or one can be a walî for one party and a wakîl for the other party, or one can take one’s own place (as one of the parties) and also can be the walî or wakîl of the other party. If a person who has appointed someone as a wakîl says that his/her wakîl is free to do anything and everything on his/her behalf then the wakîl can appoint someone else as the wakîl. A child who has not reached the age of puberty can be married by his/her closest walî. The walî for the child is his/her asabas (relatives in accordance with the earlier-mentioned sequence). If there is no asaba then the mother will become the walî. If someone who is not a wakîl [for example, one of the walîs of a boy or a girl who is at the age of puberty, or a stranger] marries him/her to someone whom they do not know and tells him/her later on, if he/she does not refuse it when he/she hears it, then the nikâh becomes sahîh. When the child reaches the age of puberty, he/she can refuse the nikâh which was performed by his/her walî other than his/her father and father’s father.
In Hanafî Madhhab it is not obligatory to say the words “tazwij or nikâh” as the nikâh is performed. A nikâh will also become sahîh by such expressions as: “I have given you as a present or gift,” “I have given you,” “I have given you as a charity,” “I have sold,” “I have bought.” If both parties use these types of expressions, then they have to use the perfect tense of the verbs, (that is, the tense that shows that the action has been done). If one party says it in the imperative form and the other party uses the perfect tense, the nikâh will also be sahîh. A walî can marry a small girl who is under the age of puberty to her kufw (her equal in rank or social status). In the other three Madhhabs only the father can give in marriage his daughter who is a virgin and over the age of puberty. She does not have to be under the age of puberty for being given in marriage by her father.
It is written in the book Mîzân al-kubrâ: “In Shâfi’î and Hanbalî Madhhabs the walî has to be present during the nikâh; otherwise, the nikâh will not be sahîh. A woman cannot be a walî. In Hanafî Madhhab, a woman can get married without a walî and can appoint someone her deputy, yet if a woman marries someone who is not her kufw, her walî can interfere and stop the marriage. In Mâlikî Madhhab, if a woman is one of the notables of the town and is rich, then her walî has to be present at the nikâh. If a woman is not one of the notables of the town and is not rich, then she can get married through her wakîl. In Shâfi’î and Hanbalî Madhhabs a fâsiq (sinner) cannot be a walî but in Hanafî and Mâlikî Madhhabs a fâsiq also can be a walî. In Shâfi’î Madhhab if a closer walî is a safarî distance away (around 108 km), then a farther walî can give her in marriage. [A farther walî is one who is later in the sequence of being a walî.] In the other three Madhhabs a farther walî cannot give her in marriage. In Hanafî and Mâlikî Madhhabs if nobody knows the whereabouts of the closer walî, then her brother can give her in marriage to someone, but in Shâfi’î Madhhab he cannot give her in marriage.In Shâfi’î Madhhab the father and the father’s father can force her to marry a choice of theirs. In the Mâlikî and Hanbalî Madhhabs only her father can marry her to someone of his own choice, but not by force. In Hanafî Madhhab a girl who is above the age of puberty cannot be given in marriage by anyone without her consent. In the other three Madhhabs a girl who is under the age of puberty cannot be given in marriage by anyone except her father. In Hanafî all asabas (paternal relatives) can give her in marriage but she can refuse the marriage when she reaches the age of puberty. In Hanafî and Mâlikî Madhhabs her walî can marry her to himself. In the Hanbalî Madhhab a walî can marry her to himself through his wakîl. In Shâfi’î Madhhab he cannot even marry her through his wakîl. In the three Madhhabs, when a woman and her walîs permit, she can marry someone other than her kufw, but in Hanbalî Madhhab she cannot marry someone other than her kufw. In Shâfi’î and Mâlikî Madhhabs a walî cannot marry her to someone who is not her kufw with his own desire. In Hanafî Madhhab he can do that.
In Shâfi’î Madhhab kufw is obligatory in lineage, crafts, religion, flawlessness, and freedom. In Mâlikî Madhhab kufw is necessary only in religion. In Hanafî Madhhab, kufw applies to religion, lineage and property. In all the (four) Madhhabs, the first condition is for the man to be a Muslim and the woman not to be a polytheist. In Hanafî Madhhab a woman who is married to someone who is not her kufw can be separated by her walîs. In the other three Madhhabs, if her walîs do not give her permission, the nikâh will not be sahîh anyway. In the Mâlikî Madhhab a woman who wants to get married to someone of her kufw with a mahr which is less than the mahr al-mithl can be stopped by her walîs. According to the other imâms her walîs cannot stop her from such a marriage. In the three Madhhabs, a nikâh which is performed by a farther walî in the presence of a closer walî will not be sahîh, but in Mâlikî Madhhab only the nikâh of a virgin girl which is performed by a farther walî in the presence of her father will not be sahîh.
If a man states that “So and so (name of the woman) is my wife” and she confirms him their marriage will be valid according to three Madh-habs. In the Mâlikî Madhhab, however, their nikâh will not be valid.
In three Madhhabs, a nikâh performed without witnesses will not be sahîh. If it is done in the presence of witnesses it is permissible to keep it a secret. In Mâlikî Madhhab, the nikâh will be sahîh, but it has to be announced among the acquaintances. In the Shâfi’î and Hanbalî Madhhabs, the two witnesses (who are necessary for the nikâh) have to be known by the community as men of integrity. In the Hanafî Madhhab, the nikâh will be sahîh also through the testimony of one man and two fâsiq (sinful) women. In (the other) three Madhhabs, when a Muslim man marries a zimmî woman, the two witnesses have to be Muslims. In the Hanafî Madhhab the two witnesses can be zimmîs. Conversation between the parties is a sunnat during the nikâh. In Shafi’î and Hanbalî Madhhabs it is a must-condition to say the word ‘Tazwij’ or ’Nikâh.’ In Hanafî Madhhab a nikâh will be sahîh by saying any kinds of words expressing possession. This matter in Mâlikî Madhhab is similar to that in Hanafî, but the mahr has to be mentioned.
If one says, “I have married my daughter to so and so (name of the person)” and that person hears this statement and says that he has accepted the nikâh, according to all ’âlims (scholars), the nikâh will not be sahîh. According to Abû Yûsuf (rahmatullâhi ta’âlâ ’aleyh) it will be sahîh.
In Shâfi’î Madhhab if one says, “I have married my daughter to you,” and that man says, “I have accepted it,” the nikâh will not be sahîh. He has to say, “I have accepted her nikâh,” or “her tazwîj,”, but according to Hanafî, Hanbalî and other criteria in the Shafi’î (rahmatullâhi ’aleyh), the nikâh will be sahîh.
Imâms (rahmatullâhi ta’âlâ ’alaihim ajma’în) of three Madhhabs said that it would be jâiz (permissible) to marry a disbelieving woman with a holy book by accepting her from her walî, but in Hanbalî Madhhab it is not jâiz.
When a man marries a woman on condition that he will not marry another woman besides her, or that he will not take her somewhere else in the future, according to the three Madhhabs his nikâh will be sahîh and it is not necessary for him to keep his promise, yet in this case he will have to pay her the mahr al-mithl. Imâm-i Ahmad ibn-i-Hanbal ‘rahmatullâhi ta’âlâ aleyh’ said that “The man will have to keep his promise; if the man does not keep his promise, the woman can dissolve the marriage.”
When a father wants to get married, it is not obligatory for his son to marry him, (that is, to help him marry a woman), in Hanafî and Mâlikî Madhhabs. [It is advisable to help one’s father get married.] In Shâfi’î and Hanbalî Madhhabs, the son has to marry his father, (that is, to help him get married).
In the Hanafî Madhhab, a woman can dissolve the marriage if the man is incapable of the sexual act. In the other three Madhhabs, she can dissolve the marriage if the man has any kind of deficiency. If these deficiencies occur after the nikâh, she can still dissolve the marriage. If there is a deficiency in the woman, according to Hanbalî and one fatwâ in Shâfi’î, the man can dissolve the marriage; according to Mâlikî and another fatwâ in Shâfi’î, he cannot dissolve the marriage.” Translation from the book Mîzân al-kubrâ ends here. Khusûmat means to file a complaint against someone. A woman who does not have any defect can apply to the court to dissolve the marriage if she finds out that her husband is innîn, even if a long time passes after their marriage. If the man denies it, the judge sends the woman to an obstetrician’s to be examined. If the doctor says that the woman is virginal, one year later that examination is performed again. If she is found out to be virginal again the judge separates them. In this state of separation the exact mahr and iddat are obligatory. Though the woman will lose her right of khusûmat after one sexual intercourse, it is sinful not to have any more sexual intercourse. Innîn is a man who is incapable of having sexual intercourse because of old age, or having trouble with his genital organ or magic. They cannot apply to the court to dissolve the marriage for any other reason. It is written in the book Ibn al-Âbidîn and in the fatwâs of Hâniyya, Tatârhâniyya and Abullays that a nikâh is not sahîh if it is made dependent on a condition tobe fulfilled beforehand. A good example for this is to say, “I have married you provided that my father gives his consent.” It is written in the book Ibni ’Âbidîn, at the end of the chapter of ‘Muharramât’ that, if she says, “I have married you if my father consents to it,” and if her father is present there and says that he has consented to it, then that nikâh will become sahîh. Another example of a conditional case is explained in the books Ibni Âbidîn, Kitâb-ul fiqh alal-Madhâhib-il arba’a and Nimat al Islam. While explaining the performance of a nikâh, the authors of these books say that if a woman says to a man, “I am getting married to you on condition that I will be able to divorce you whenever I choose to,” and if the man states that he accepts her condition; then, the nikâh will be sahîh and she will also hold the right to divorce him.” If a woman who does not have a husband or a mahram wants to go on a long journey, such as on Hajj, or if Hulla has become necessary she can get married to someone by the above-explained conditional manner. It is seen from these examples that Islam’s criticizers who say that in Islam only men hold the right to divorce or who say that women are like playthings in the hands of men are quite wrong. They do not know anything about Islam. These liars and slanderers with their false criticisms and allegations are estranging youngsters from Islam. The quotation given above shows clearly that a man can transfer the right to divorce to his wife at the time of the marriage contract, and as a consequence of this, she can get a divorce whenever she desires. Look up the word “Tafwîd” at the end of the chapter about Talâq for further information[40] .
During the contract of marriage, if one offers a fâsid (unacceptable, wrong) condition to be satisfied, the nikâh will be sahîh, but the condition will not be carried out. For example, if one says, “I have married you on condition of not giving a mahr to you,” the nikâh will be sahîh, but the condition will be invalid and it will be necessary to give her mahr al-mithl.
MAHR - Kitâb-ul fiqh alal-madhâhib-il arba’a states, “The mahr comprises things like gold, silver, banknotes, or any kind of property or any kind of benefit that is given by a man who wants to get married to the prospective bride. There are two types of mahr. Paying the first type of mahr becomes wâjib immediately after the nikâh is performed and half or all of it is liable to lapse. This type of mahr is termed mahr-i mu’ajjal. The amount of the second type of mahr is determined while performing the nikâh, but it will be wâjib to pay after one of the three things happens, and it is not abatable. This type of mahr is called mahr-i mu’ejjel. If neither type of mahr is specified during the nikâh, the mahr-i mithl has to be given later on. If one’s wife does something which causes a separation such as being a renegade, or causing hurmat-i musâhara, the man never pays any amount of the mahr-i mu’ajjal. But, if a man divorces his wife, or if he does something which causes a separation, the man has to pay half of the mahr-i mu’ajjal, and the other half lapses. Three things make giving the mahr-i mu’ejjel wâjib. These three things are having sexual intercourse, being alone together, and the death of one of the partners. When any one of these three things occurs, the husband has to pay also the mahr-i mu’ajjal which he hasn’t paid yet, and its amount cannot be decreased. Once a sexual intercourse has taken place or the wife and husband have stayed alone, the mahr has to be paid completely when the time determined during the nikâh comes, or in case of separation. If the wife dies, the mahr is paid to her heirs. If the husband dies, the wife is paid from her husband’s inheritance. Being alone with one’s wife, which is legitimate, is different from being alone with a nâ-mahram woman. This latter case is harâm (forbidden). Being alone with one’s wife is not deemed to have occured if they are accompanied by anything that can prevent, either sentimentally, or canonically, or naturally, their having sexual intercourse. In cases such as when one of them becomes ill or wears ihrâm or is performing the namâz or fasting or if the woman is in a period of menstruati