MARRIAGE ںکاح In The light of Quran and Sunnah

MARRIAGE ںکاح   In The light of Quran and Sunnah 

Pre-Islamic Arabia: 

In Pre-Islamic Arabia a variety of different marriage practices existed. The most common and recognized types of marriage at this time consisted of: marriage by agreement, marriage by capture, marriage by purchase, marriage by inheritance and "Mot'a" or temporary marriage. 
1) Marriage by agreement: 
The first of the four common marriages that existed in pre-Islamic Arabia was marriage by agreement. This consisted of an agreement between a man and his future wife's family. This marriage could be within the tribe or between two families of different tribes. 
Some women were forbidden from marrying outside of their tribe and had to either marry another member of the tribe or a stranger who would agree to live with the tribe. 
In the case that involved a man and woman of two different tribes, the woman would leave her family and permanently reside with her husband. The children of these marriages were considered part of their father's tribe, unless a different arrangement had previously been made which returned the children to their mother's tribe. 
2) Marriage by capture:  
The second of the common marriage practices that existed in pre-Islamic Arabia was marriage by capture. Most often taking place during times of war, marriage by capture occurred when women were taken captive by men from other tribes and placed on the slave market of Mecca. From the slave market these women were sold into marriage or slavery. In captive marriages, men bought their wives and had complete control over them. Women in these marriages had no freedom and were subjected to following their husbands' orders. These women became their husbands' property and had no right to divorce or dismissal of their husbands. They thus completely lost any freedom they may previously have had. Her husband had absolute authority over her, including the exclusive right to divorce. 
3) Marriage by purchase: 
The third of the common marriage practices that existed in pre-Islamic Arabia was "marriage by purchase." This was a more traditional marriage practice. These marriages consisted of the groom or groom's father paying the bride "Mahr", or a dowry; to marry them. The dowry usually consisted of items like camels and horses. Women in "purchased" marriages faced the same oppression as women who were forced into marriages by capture. This practice may have led to a decrease in female infanticide due to the wealth a family could derive from selling their daughter. Women in these marriages were subject to their husbands' control and had very few rights. 
4) Marriage by inheritance: 
The fourth of the common marriage practices that existed in pre-Islamic Arabia was "marriage by inheritance". Arabia was a male-dominated society. Women had no status of any kind other than as sex objects. The number of women a man could marry was not fixed. When a man died, his son inherited all his wives except his own mother. Such "marriage" was "a widespread custom throughout Arabia, including Medina and Mecca". This practice also involved the possessions of a deceased man's wife being passed to his son. In such a case, the son could keep his father's other wives for himself or arrange the above-described marriages by purchase. In these cases, as in the majority of marriage practices at this time, the woman had few or no rights and was required to follow the orders of her inheritor.
Reforms after Islam: 
Prophet Muhammad (PBUH) had reformed the laws and procedures of the common marriage practices that existed during his prophet-hood. The rules of "marriage by agreement (marriage through consent)" and "marriage by capture" were reformed and a strict set of rules and regulations were put in place. The practices of "marriage by purchase" and "marriage by inheritance" were forbidden. Several chapters and verses from the Holly Quran were revealed which banned such practices. 

Importance of Marriage In Islam:

In the Light of Quran:

In relation to this respected bond, there are many verses of the noble Quran and countless Ahadith that encourage marriage for any single man or woman - of any background. This is not only limited to the young brothers and sisters who have never been married and are looking for their life mate, but even those who have been through divorce have also been encouraged to re-marry and to "complete" their faith.

From the ocean of traditions and verses of the Quran on this topic, we quote the following:

وَأَنْكِحُوا الْأَيَامَىٰ مِنْكُمْ وَالصَّالِحِينَ مِنْ عِبَادِكُمْ وَإِمَائِكُمْ ۚ إِنْ يَكُونُوا فُقَرَاءَ يُغْنِهِمُ اللَّهُ مِنْ فَضْلِهِ ۗ وَاللَّهُ وَاسِعٌ عَلِيمٌ

"Marry the single people from among you and the righteous man and girls. If you are poor, Allah will make you rich through His favour; and Allah is Bountiful, All-Knowing." (Surah 24, Verse 32)

In this verse, Allah Almighty commands us to marry the single, righteous man/woman from among us. Allah Almighty even gives us a guarantee that if we are poor or lack the proper funds, still we should not delay the marriage as Allah will take care of the couple and grant them bounties from His Grace and Mercy.

وَلْيَسْتَعْفِفِ الَّذِينَ لَا يَجِدُونَ نِكَاحًا حَتَّىٰ يُغْنِيَهُمُ اللَّهُ مِنْ فَضْلِهِ ۗ

"And let those who cannot find someone to marry maintain chastity until Allah makes them rich through His favours ..."(Surah 24, Verse 33)

In the continuation of Surah 24, in the above quoted verse, Allah commands the believers to remain chaste and faithful if they cannot find a suitable spouse to marry until Allah (SwT) grants them bounties out of His favors. Thus, one must not resort to evil, sin or illicit sexual relationships because they cannot find a permanent spouse.

وَأُحِلَّ لَكُمْ مَا وَرَاءَ ذَٰلِكُمْ أَنْ تَبْتَغُوا بِأَمْوَالِكُمْ مُحْصِنِينَ غَيْرَ مُسَافِحِينَ ۚ فَمَا اسْتَمْتَعْتُمْ بِهِ مِنْهُنَّ فَآتُوهُنَّ أُجُورَهُنَّ فَرِيضَةً ۚ وَلَا جُنَاحَ

عَلَيْكُمْ فِيمَا تَرَاضَيْتُمْ بِهِ مِنْ بَعْدِ الْفَرِيضَةِ ۚ إِنَّ اللَّهَ كَانَ عَلِيمًا حَكِيمًا

"... and besides these, it is lawful for you to marry other women if you pay them their dowry, maintain chastity and do not commit indecency. So those (women) whom you marry for an appointed time, you must give them their agreed upon dowries. There is no harm if you reach an understanding among yourselves about the dowry, Allah (SwT) is All-Knowing and All-Wise." (Surah 4, Verse 24)

In another verse of the Quran, Allah (SwT) compares the husband and wife to garments for one another:

هُنَّ لِبَاسٌ لَكُمْ وَأَنْتُمْ لِبَاسٌ لَهُنَّ ۗ

"They (your wives) are clothing (covering) for you and you too are a clothing (covering) for them." (Surah 2, Verse187)

In our day-to-day life, we see many uses for clothing. Not only does our dress act as a beautification for ourselves, but it also covers any defects that we may have on our physical body - thus, if a person has a scar or burn mark on his body, the clothing will cover this from others around him and thus, they would not know that he has such a physical 'defect'.

The husband and wife are to play the same role in relation to one another. If the wife has spiritual defects or lacks something in her character, then the husband must cover these up and not expose her shortcomings to others. The wife too, must cover up and hide her husband's deficiencies and weaknesses and protect her mate. Not only has Allahcommanded the believers not to make fun of one another and not to mock or ridicule others, but they are also supposed to protect the honour and integrity of one another.

Allah Says:

"Men are the protectors and maintainers of women, because Allah has given the one more (strength) than the other, and because they support them from their means. Therefore the righteous women are devoutly obedient, and guard in (the husband's) absence what Allah would have them guard." (4:34)

In the Light of Sunnah(PBUH):

The Prophet (PBUH) said: "The best of you, is the one who is best to his wives, and I am the best of you towards my wives." (At-Tahaawi: Saheeh )

The Prophet (PBUH) said: 

قالَ رَسُولُ اللهِ (صَلَّى اللهُ عَلَيهِ وَآلِهِ وَسَلّمَ): مِنْ سُنَّتِي أَلتَّزْوِيجُ فَمَنْ رَغِبَ عَنْ سُنَّتِي فَلَيْسَ مِنِّي.

" النكاح سنتي ومن رغب عن سنتي فليس مني“

The Messenger of Allah (S) has said, "Of my tradition is to marry. So then whoever turns away from my tradition (Sunnah) is not from me (my nation)."

"Marriage is my tradition and whosoever keeps away from my
tradition is not amongst my people."

In this famous tradition mentioned in all books of Islamic narration, the Prophet (S) clearly spelled it out to the believers that in order to stay on his path which is the true path of salvation, we must marry - not only the youth who are getting married for the first time - but also older people who may have divorced or lost a spouse must also marry in order to remain on the Sunnah of the Prophet (S).

قالَ رَسُولُ اللهِ (صَلَّى اللهُ عَلَيهِ وَآلِهِ وَسَلّمَ): ما بُنِيَ بِناءَ فِي الإِسْلامِ أَحَبُّ إِلى اللهِ عَزَّ وَجَلّ مِنَ التَّزْوِيجِ.

The Messenger of Allah (S) has said, "There is no foundation that has been built in Islam more loved by Allah, (The Greatest and Noblest) than marriage."

This hadith shows us the great importance that Allah and His Messenger (S) have placed on marriage, such that it is the most loved foundation or establishment upon which the Muslim man and woman can build their life upon. If such a foundation is built with love, honesty, sincerity and true faith in Allah and all that He has commanded, then there is nothing that could destroy such a firm building.

Allah's Messenger (PBUH) said in other Hadith: "In the sexual act of each of you there is a sadaqa." (i.e. a good deed, an act of charity). The Companions replied: "O Messenger of Allah! When one of us fulfils his sexual desire, will he be given a reward for that?" And he said, "Do you not think that were he to act upon it unlawfully, he would be sinning? Likewise, if he acts upon it lawfully he will be rewarded." (Sahih-Muslim)

Narrated by Anas bin Malik (RA)

A group of three men came to the houses of the wives of the Prophet asking how the Prophet worshipped (Allah), and when they were informed about that, they considered their worship insufficient and said, "Where we are from the Prophet as his past and future sins have been forgiven." Then one of them said, "I will offer the prayer throughout the night forever." The other said, "I will fast throughout the year and will not break my fast." The third said, "I will keep away from the women and will not marry forever." Allah's Apostle came to them and said, "Are you the same people who said so-and-so? By Allah, I am more submissive to Allah and more afraid of Him than you; yet I fast and break my fast, I do sleep and I also marry women. So he who does not follow my tradition in religion, is not from me (not one of my followers)." Sahih Bkhai

Narrated by Abu Huraira (RA)

تنكح المرأة لأربع: لمالها ولحسبها ولجمالها ولدينها فاظفر بذات الدين تربت يداك

The Prophet said, "A woman is married for four things, i.e., her wealth, her family status, her beauty and her religion. So you should marry the religious woman (otherwise) you will be a losers.

Marriage(نکاح) under Islamic Law:

Introduction:

Under the Arabian pre-Islamic law, no limitations were set on men's rights to marry or to obtain a divorce. Islamic law, however, restricted polygamy. The institution of marriage, characterized by unquestioned male superiority in the pre-Islamic law of status, was redefined and changed into one in which the woman was somewhat of an interested partner. 'For example, the dowry, previously regarded as a bride-price paid to the father, became a wedding gift retained by the wife as part of her personal property'^. Under Islamic law, marriage was no longer viewed as a "status" but rather as a "contract". The essential elements of the marriage contract were now an offer by the man, an acceptance by the woman, and the performance of such conditions as the payment of dowry. The woman's consent was made compulsory. Furthermore, the offer and acceptance had to be made in the presence of at least two witnesses. A man was not allowed to leave his wife and marry someone else just because the other women pleased him more. A married woman also had rights over the husband as stated by Muhammad(PBUH) that "You have your rights upon your wives and they have their rights upon you. Your right is that they shall not allow anyone you dislike, to trample your bed and do not permit those whom you dislike to enter your home. Their right is that you should treat them well in the matter of food and clothing." 

Objectives of Nikah:

There are certain objectives behind the introduction of marriage (nikah) for the attainment of which Allah Almighty has commanded man to lead his life under a system. A study of the Holy Qur’an and the Sunnah of the Prophet, peace be upon him, shows that the significant objectives of marriage (nikah) are as under:

1.  Protection of Human morals:

Allah Almighty has created this universe for man in which he declared man as the crown creation. It is the man who being subject to the divine law administers the affairs of the worldly system. By joining of human beings come into existence the families, the tribes, the classes and the races. But in the very beginning of them they are constructed by one social unit which starts by the wedlock of a man and a woman. Then this chain spreads by way of their children. This is possible only when their relationship is maintained within natural limits and to maintain the natural limits is possible through the institution of marriage (nikah).

Marriage (nikah) is the means of fulfilling the natural need of human beings. Only by means of it is possible to construct and protect human morals and culture.

It is necessary for obtaining natural and mutual benefit by a man and woman that human morals are protected by means of nikah, free mixing of opposite sexes is unnatural. This is a cause of mischief for not only human morals but also for human culture. If such bad conduct becomes common in any society it cannot maintain its very survival for a long time nor can human life remain balanced in such society.

2.  Establishment of Islamic society:

It is necessary for the accomplishment of the ends of Islamic Shari`ah that such means be available that may fulfill such ends. This would be possible only after the Islamic society comes before other nations as an ideal example and they be convinced that Islam alone is the true religion in which human relations are established in the best manner. To achieve this end Islam adopts many means. Out of those means nikah is also one such means.

A man must be competent enough to carry the responsibilities showered on him by marriage contract. This competence lies in being able to provide for his wife's needs; such as feeding, clothing, shelter, health care and above all security. It was narrated that the Prophet (SAW) says:

با معشر الشباب من استطاع منكم الباءة فليتزوج فإنه أغض للبصر وأحصنللفرج

· Oh you young-men, whosoever has the prerequisite of marriage
among you should go ahead and marry, for that will help him to
lower his gaze and guard his modest

3.  Love and affection among the spouses:

One of the objectives of nikah is to create mutual love and affection among both sexes. This objective can be accomplished only when the spouses get happiness and satisfaction. Rather, it would be better to say that the very object of creation of two opposite sexes of human beings was that they may be cause of peace and satisfaction to each other. The Holy Qur’an says:

It is He who created you from a single person, and made mate of like nature in order that he might dwell with her (in love).

There is a saying of the Messenger of Allah that Iblis deputes his troops to create mischief and disorder in the world. Each one of the devils returns with a story of his performance and narrates the same to him but Iblis is not satisfied with their respective performances. The moment a devil informs that he has created misunderstanding between the spouses, Iblis embraces him and his joy knows no bounds.

This hadith shows that lack of love and affection among the spouses is the worst of all satanic mischief. This mischief generates many other mischiefs whereby other individuals of society are adversely affected. A dispute of two persons becomes the dispute of two families and if the solution is not found and separation takes place between the spouses the families is disconnected. Thus a domestic quarrel upsets the whole social order. Where such incidents multiply it weakens the strength of the State. This is the reason that Iblis feels extremely happy when love and affection among the spouses is rooted out from their hearts.

Following are declared as the objects of marriage by the Court in 2004 YLR 482:

1. Preservation of human race;
2. To establish the paternity of child;
3. Promotion of love, union and mutual respect between spouses;
4. Legalization of intercourse;
5. Promotion of a hormonal family life.

DEFINITION OF NIKAH:

Marriage as recognized in the Muslim faith is a civil contract that legalizes the relationship between a man and a woman and creates rights and obligations amongst themselves.

Literally, the word nikah means "to collect things". The word nikah is used to connote the absorbing of a thing into another thing. When the water of rainfall absorbs into the earth the Arabs say: nakaha'l-matru'l-'ard.(نکح مطر الارض) Likewise when the trees are intermingled it is said: tanakahat'il-ashjar.

Technically, the word nikah refers to cohabitation (mubasharat).

In Shari`ah nikah refers to a contract. A contract means a knot or a tie. As a woman and a man are tied together by a knot (of wedding called the wedlock), hence nikah is also called `aqd (a contract)

Betrothing or asking for marriage (nikah) or engagement is a ceremony that takes place prior to the ceremony of nikah. it is like a preface of the nikah.

As “a marriage contracted and solemnized in accordance with Shariah with all its constituents and condition and without any legal impedimentis called Marriage.”

"A contract that results in the man and woman living with each other and supporting each other within the limits of what have been laid down for them in terms of rights and obligations."

Engagement (khitbah)

In Arabic language betrothing or engagement is called: khitbah.It is a promise of a man with the intention that he will marry a certainwoman. It is a sort of agreement that serves as a preliminary to thecontract of marriage (nikah). Engagement (khitbah) is permissiblelegally. Rather, it is commendable (mustahsan).

Classes of marriage (Maratib nikah):

"Maratib" is a noun plural in the Arabic language. Its singular form is "martabah" which means a rank, a class, a category. According to the jurists (fuqaha) marriage (nikah) is of five classes. The jurists (fuqaha) have made these five categories to bring in conformity with the diversity of juristic rules. Their understanding and grasping needs deep insight and juristic skill otherwise the fact is that in the Holy Qur’an and the Sunnah of the Prophet peace be upon him, every person has been made to incline to contract a marriage (nikah). In Surah al-Nur the Holy Qur’an says:

Marry those among you who are single, and the virtuous ones among your slaves, male or female, if they are in poverty, Allah will give them means out of His grace.

In many ahadith there is persuasion for nikah, e.g., in one hadith mentioned in al-Nisa'i there is prohibition to lead an unmarried life (tajarrud). 'Umm al-Mu'minin Hadrat `A'ishah Siddiqah (Allah’s Pleasure be on her) said: “that the Messenger of Allah forbade to lead an unmarried life”.

These five classes of nikah described by the jurists (fuqaha) are the following:

1. Compulsory (Fard):

Where a person has all such resources that are generally necessary for a family life, such as adulthood, earning livelihood, health, having a house to live and is certain that along with the possession of these resources if he remains unmarried he will indulge in major sin (of commission of Zina), then it is, fard (compulsory) for him to contract a marriage (nikah). If he does not contract marriage (nikah) he will be sinful.

2. Obligatory (Wajib):In the presence of the aforesaid circumstance if such a person instead of having a certainty (yaqin) he has a probability (zann) that a it is possible that he may commit a major sin, then to contract a marriage (nikah) is obligatory (wajib) for him.

3. Unlawful (haram):

In the following two circumstances the contract of marriage (nikah) is unlawful (haram): Firstly, the necessary requirement of marital life are not existing. Secondly, Where an individual is certain that after marriage (nikah) he shall commit major sin. In such a circumstance to contract a marriage (nikah) becomes unlawful. For example, a person is inclined (has deep secret interest) in a particular woman but he cannot marry her and if he contracts the marriage  (nikah) with someone else his inclination in the former remains intact and he is certain that he would commit major sin. In such a circumstance his contracting a marriage (nikah) with this second woman is unlawful.

4. Disliked (Makruh):

Where a person has a probability (zann) that after his marriage (nikah) he instead of doing justice with his wife shall do injustice or he has the probability (zann) that he would commit major sin after such nikah, then in such a circumstance the nikah is disliked (makruh).

5. Sunnat (acting according to the practice of the Messenger of Allah):

When all the requirements of a marital life are available, viz. a man is adult, of sound mind, and there is no zann or yaqin of any injustice with the wife, nikah is Sunnat. There is a saying of the Messenger of Allah: “To contract a marriage (nikah) is my Sunnah (way)”

Equality (al-Kafa'at) among spouses (zaujayn):

It is necessary that in certain matters, there must be Equality (al-Kafa'at) among the spouses (zaujayn). The reason for the existence of such likeness is that individuals living in a like environment become acquainted with each other within no time. Their problems are common. Their needs and difficulties are similar. If there is difference of way of living and of the belief there is apprehension of dislike and detachment as against love and attachment. This nonexistence of likeness even adversely affects the children born of such a wedlock. Hence, the jurists (fuqaha) are of the view that there must exist likeness among the spouses (zaujayn) in certain matters. This likeness is to exist in five matters.

1. Equality in the matter of descent (nasab):

Where the husband and the wife both belong to the same tribe (qabilah) it is called equality in the matter of descent (nasab). Where the spouses belong to two different families but of equal status it is also termed equality in descent (nasab).

2. Equality in the matter of faith (din) and piety (taqwa):

It is also necessary that the spouses (zaujayn) must have belief in one and the same faith (din). Likewise it is also necessary that they both must be alike in the matter of observance of piety (taqwa). Where one partner of life is pious, faithful and observer of the limit of Allah Almighty while the other is impious, faithless and transgressor of the limits of Allah Almighty, it is impossible to conceive a peaceful life for them.

3. Equality in the matter of social status:

It is also necessary that the spouses (zaujayn) must be equal in the matter of their social status. For example the husband is a small shopkeeper in a town while the wife is holding a high office in a big city. This would not be equality in social status.

According to Imam Abu Hanifah, social status or inequality of professions have no significance in the matter of marital life.

4. Equality in the matter of wealth and property:

For leading a successful marital life equality in the matter of wealth and property among the spouses (zaujayn) is commendable (mustahsan). Equality in wealth and property means that the spouses (zaujayn) must at least belong to like classes of society.

5. Equality in the matter of health:

According to the Maliki and Shafi`i `Ulama none of the spouses (zaujayn) should be having the bodily defects like leprosy that is seriously disliked by human beings. Some Maliki `Ulama add madness and say that a contract of marriage (nikah) between a person of sound mind with a mad person is not valid. However the generality of the `Ulama are of the view that there is no harm in a contract of marriage (nikah) between such persons.

Essential Elements of Marriage (Arkan Nikah):

There is conflict of opinion among different schools of thought in the matter of the essential elements of marriage (Arkan Nikah).

According to the Ahnaf like other matters the nikah has only one essential element that is called "Sighah", which means an offer (Ijab) and an acceptance (Qubul). Ijab is used for such word or phrase that is expressed by the guardian (wali) of the girl or a person acting on his behalf. For example, where A’s daughter B is to be married C, the expression by A in the following words is called an offer ('ijab): "I married my daughter B for a dower consideration of a hundred dinars with C".

It is a condition that the offer must be in the past tense. In the above quoted sentence the offer is in the past tense (fi`l madi). Hence, this is valid offer.

The second part of the "Sighah" is called acceptance (qubul). It is the word or the sentence which is uttered in response to the offer by the man or a person acting on his behalf. For example, the man, namely C, says: "I accepted B the daughter of A for a dower consideration of a hundred dinars". This whole sentence is called acceptance (qubul).

All jurists (fuqaha) agree that the offer and acceptance must be in the same sitting or session of assembly. In case the sitting or session had dispersed and thereafter the acceptance occurred then such an acceptance would be void automatically. The acceptance must also be in the past tense.

The Maliki school also mentions five essential elements of nikah. Those are:

(1) Wording (Sighah):These are the offer and acceptance. Their conditions have already been mentioned above.

(2) Guardian (Wali):He is a person from the side of the female who performs the function of offer on behalf of the female. For example, the father of the female or any other male within prohibited degrees to her. According to Maliki jurists (fuqaha) there can be no nikah without a guardian (wali). Their argument is based on the hadith: "a female who enters into a contract of Marriage (nikah) without guardian (wali) her nikah is void, is void, is void.(Sunan al-Tirmidhi, Abwab al-Nikah)

(3) Dower (Mahr):It is also one of the essential elements of nikah in the absence of which there cannot be nikah. However, the mention of the dower at the time of nikah is not essential.

(4) Man:A male person who intends to marry the female person.

(5) Woman:A female who is going to be married with the male person. It is essential for a woman to be free from all impediments like `iddat (observance of waiting period in cases of death of or divorce by the previous husband) and hamal (in case of pregnancy had delivered the child).

According to the Shafi`i `Ulama the essential elements of nikah are five though a little different in concept as compared to the concept of the Maliki `Ulama. These essential elements are: "Sighah"; Male; Female; Guardian; and

The Shafi`i `Ulama have declared that the presence of two witnesses is essential element of nikah. Their argument has the support of a hadith according to which the Messenger of Allah said: “A marriage (nikah) contract without two witnesses is not permission.

Shia Law. According to Shia Law the presence of witnesses is not necessary in any matter regarding marriage.