Family Structure In Islam بِناء اللأُسرة فِي الإسلام
  • Introduction

    From the earliest periods of human history, as S.R. Reiber has remarked, “religion and the family have been intimately related. Each has an influence upon the other.” This interconnection may explain the apparent gap in conventional studies of the Muslim family structure between two unbalanced approaches; the clearly “normative-moralistic” approach, and the non-normative, sometimes called the sociological or anthropological approach. Since the Muslim family system is based on religious principles and norms, most writers have dealt with the subject from a religious, normative point of view almost exclusively (to the neglect of the other: ed.).

    Table of Contents Show Hide Content
    1. Introduction
    2. Islamic Law
    3. The General Characteristics of Islamic Law
    4. The Foundations and Boundaries of the Family in Islam
      1. The Principle of Identity
      2. The Traditional Form of the Muslim Family
      3. The Polygynous Form
      4. Is the Family a Religious Unit?
    5. Marriage in Islam
      1. Control of Sexual Behavior
      2. Islam’s Position on Marriage
      3. The Purposes of Marriage
      4. Marriage: Sacrament or Contract?
    6. The Conditions of Marriage
    7. Dowry, Marriage-endowment, Marriage-gift
    8. Marriage Guardianship
    9. Marriage of Minors
    10. Compulsion versus Freedom in Marriage
    11. Kafa’ah in Marriage
    12. Polyandry
    13. Other Forms of Marriage in pre-Islamic Arabia
    14. Islam’s position
    15. Polygyny
    16. Inter-faith Marriage
    17. The Web of Domestic Relations
      1. The Moral Foundations of Marital Roles
      2. Marital roles
    18. Maintenance and Its Components
      1. Residence
      2. Other Components of Maintenance
      3. Maintenance in Sickness
      4. Maintenance in Recalcitrance (Nushuz)
      5. Maintenance in Poverty
      6. Dower and Other Economic Rights
      7. Non-Material Rights
    19. The Wife’s Obligations, the Husband’s Rights
      1. General Remarks
      2. Obedience
      3. Manifestations of Obedience
    20. Intergenertional Roles
      1. The Child’s Rights, the Parents’ Obligations
      2. The Right to Life and Equal Life Chances
      3. The Right to Legitimacy
      4. The Child’s Right to Socialization and General Care
    21. The Child’s Duties, the Parent’s Rights
      1. General Remarks
      2. Ihsan
      3. Deference
      4. Support and Maintenance
    22. Intragenerational and Miscellaneous Kinship Roles
      1. Brother-Sister Relationships
      2. Miscellaneous Kinship Roles
    23. Family Planning; Birth Control
    24. Dissolution of the Family
      1. Islam and Marriage Dissolution: Divorce
      2. Divorce as a Moral Act
      3. The Grounds of Divorce
      4. The Timing of Divorce and the Preceding Steps
    25. The How and the Types of Divorce:The Sunnah Divorce and Its Variants
      1. The Simple Revocable Divorce
      2. The Double Revocable Sunnah Divorce
      3. The Triple Irrevocable Sunnah Divorce
    26. The Contra Sunnah Deviant Divorce
    27. Irrevocable Divorce
    28. The Agents of Divorce
      1. The Man’s Right to Divorce
      2. The Woman’s Right to Divorce and Marriage Dissolution
      3. Divorce or Marriage Dissolution by Mutual Consent
      4. Divorce or Marriage Dissolution by Judicial Process
    29. ‘Iddah or Waiting Period
    30. Maintenance in the Waiting Period
    31. Custody of the Children
    32. Succession and Inheritance:Social Implications of Inheritanc
    33. The General Characteristics of Inheritance in Islam
    34. Bars to Inheritance; Complete and Partial
    35. The First Category; Categorical Impediments
    36. Inheritance:Classes of Heirs
    37. The Scheme of Distribution
    38. The Qur’anic Primary Heirs:
      1. Agnatic Heirs
      2. Non-Qur’anic, Non-Agnate Heirs
      3. A Note on the Female Share
      4. See related articles

    Islamic Law

    Shari‘ah is usually defined by Muslim scholars as the body of “those institutions which Allah has ordained in full or in essence to guide the individual in his relationship to God, his fellow Muslims, his fellowmen, and the rest of the universe.” It may be compared in certain respects to some denotations of the Western concept of “natural law.” According to the classical view, it is the basis for the moral judgment of actions as good or bad, and thus it can come only from God.

    The General Characteristics of Islamic Law

    Islamic law is “evolutionary” in that its full growth took centuries and passed through various phases. It began with general principles stated in the basic sources of Islam, namely, the Qur’an and the Traditions of the Prophet At first, it dealt with simple, practical problems of daily life, but as time went on it grew complex and inclusive. Its sources encompassed a wide range of basic, supplementary, and rational roots.

    Islamic law is “evolutionary” in that its full growth took centuries and passed through various phases. It began with general principles stated in the basic sources of Islam, namely, the Qur’an and the Traditions of the Prophet. At first, it dealt with simple, practical problems of daily life, but as time went on it grew complex and inclusive. Its sources encompassed a wide range of basic, supplementary, and rational roots, as the following simplified outline shows:

    In Islam, religion and law, in Gibbs words: “are indivisible… Law is the external concept of religion…. From this follow two important consequences as distinguishing features of law in Islam… The first is the width of the field it covers… The second is the spirit by which its judgments are made… In framing its definitions, therefore, the ethical aspect is paramount; and in no case may the legal judgment conflict with it.”

    Thus, any action can be classified in Islamic law under one of five basic categories: obligatory, voluntary, but meritorious and commendable, neutral, permissible, or unlawful, reprehensible and forbidden.

    The Foundations and Boundaries of the Family in Islam

    (a) The Principle of Identity

    Every individual whose lineal identity is known must be identified accordingly. He must preserve his rightful identity and no one may deny it to him. Although he has a natural right to lineage and social placement, it is also his obligation to identify himself with his true lineage, and it is the responsibility of all those about him to help to that effect. According to the Qur’an, this is most equitable in the sight of God. If his lineage is unknown, the individual must be identified as the brother and client of his fellow Muslims. That suffices to give him the necessary identity and to assure him of a legitimate place in society.

    (b) The Traditional Form of the Muslim Family

    Although Islam does not prescribe any specific organizational family type, there can be little doubt that traditional Muslim family structure has actually been closer to the extended than to the nuclear type. This is probably the result of continuity, and not the outcome of innovation by the Muslims. Islam apparently accepted this form and took no further stand on it. It apparently saw no particular need to restrict the family structure to any exclusive form, be it extended, nuclear or polygynous (multiple wives to a man: ed.). This may indicate that such forms in themselves are not crucial to the Islamic conception of family solidarity and societal cohesion, both of which are of primary concern for Islam, and that emphasis should be placed not on the form but rather on the behavioral components. As a matter of fact, familial rights and obligations in Islam are independent of, and differentiated from, the organizational forms of the family; the former are fixed while the latter are open and malleable.

    (c) The Polygynous Form

    The family structure in Islam, cannot, properly speaking, be characterized as polygynous. The polygynous form is neither absolutely necessary nor unequivocally forbidden; it is permissible. Nothing in Islam indicates that polygyny is, or is not, a universal rule; or that it must be upheld or abandoned categorically. But once polygyny occurs, certain mutual expectations must be met. This may be another instance of Islam’s view of the social forms and its attitude to social change. Islam found polygyny in practice, though there is no conclusive evidence how prevalent the practice was. Islam allowed the practice to continue with certain qualifications. It did not abrogate it, ignore it completely, or prescribe it.

    (d) Is the Family a Religious Unit?

    It is somewhat curious that the family is not necessarily a “religious” unit. While Islam prescribes family rights and obligations, it does not seem to presuppose, at least on the primary level, religious uniformity. Family members are entitled to their rights and are assigned reciprocal obligations which hold whether or not the members subscribe to the same religious beliefs. The principle holds for both primary foundations of the family – ascribed blood ties and the acquired marital relationship.

    Marriage in Islam

    (a) Control of Sexual Behavior

    Human behavior has always been subject to rules because social life would be inconceivable otherwise. As Hobhouse has put it: “In no part of the world, and at no period of time, do we find the behavior of men left to unchartered freedom.” This is particularly true of sexual behavior, since “sex is capable of impelling individuals, reckless of consequences while under its spell, toward behavior which may imperil or disrupt the cooperative relationships upon which social life depends.”

    Muslims of early centuries believed that sexual deprivation could lead to mental and physical disturbances bordering on insanity. One observer related that a group of people had decided to abstain for ascetic reasons, but soon they developed physical as well as mental abnormalities, especially depression and fatigue. It was widely believed that sexual deprivation was contrary to the preservation of the human species, harmful to health and destructive of moral integrity.

    Sex, then, is crucial to social survival and personality development. It “is intimately bound up with deep psychological gratifications: the need for security, feelings of personal worth, feelings of power, and the assurance of being loved and lovable.” So crucial is sex that no social system can afford to ignore it or be indifferent to its implications. The light in which a religion views sex is probably most indicative of that religion with regard to man, society, and the universe.

    It seems almost axiomatic that a religious system which devalues sex would be most otherworldly, would initially discourage Marriage but defend its insolubility once consummated, would belittle family life and depict women as contemptible sex symbols. By contrast, a system which over-estimates sex would be no less injurious to social stability.

    (b) Islam’s Position on Marriage

    Unlike the doctrine of the Hebrew Essenes and the early Christian ascetics, but in common with the main body of Jewish and other human traditions, Islam recognizes the value of sex and advocates Marriage. It strongly discourages celibacy, even for ascetic reasons. The normal, natural course of behavior for a Muslim is to establish a conjugal family of procreation. This is the common practice of ordinary men, spiritual leaders and even Prophets. To that effect, there are many passages in the Qur’an and the Traditions of the Prophet which go as far as to say that when a Muslim marries he thereby perfects half his religion; so let him be God-minded with respect to the other half.

    There have been some mystic Sufis who abstained from Marriage and regarded family responsibility as incompatible with their personal spiritual aspirations. Extreme trends in Sufism probably emerged in reaction to the political dissension and moral laxity that befell Muslim society, affecting particularly its power structure. The general Sufi trend is sometimes believed to have been encouraged by worldly personalities in the power structure. However, when some Sufis went to the extreme and made pronouncements that were considered heretical, the political authorities took action to protect themselves as well as to maintain order.

    (c) The Purposes of Marriage

    In common with other systems, Islam favors Marriage as a means to emotional and sexual gratification; as a mechanism of tension-reduction, legitimate procreation; and social placement; as an approach to interfamily alliance and group solidarity. But there seems to be a difference of degree, at least, in that Islam’s relatively greater stress on these ends enhanced to a corresponding degree the value placed on Marriage. The social significance of this difference in emphasis is that Marriage was contracted while the prospective mates were still relatively young, and that it was more common among Muslims than among others. Progeny apparently were highly desirable and were received with enthusiasm. It is true that many of these practices go back to pre-Islamic times, when Arab men preferred to marry young virgins and to seek Marriage outside their immediate kinship group, in the belief that it was more conducive to numerous as well as healthy progeny. Such practices continued in Islam and were approved by the Prophet (saws).

    What is probably more characteristic of the Islamic position, is that Marriage, apart from these functions and perhaps also because of them, is regarded first and foremost as an act of piety. Sexual control may be a moral triumph, reproduction a social necessity or service, and sound health a gratifying state of mind. Yet these values take on a special meaning and are reinforced if they are intertwined with the idea of Allah, conceived of as religious commitments, and internalized as divine blessings. And this seems to be the focal point of Marriage in Islam, even though it does not exclude or under-rate the other purposes. To paraphrase some Qur’anic verses, the call is addressed to mankind to be dutiful to God, who created them from a single soul, and from it, or of it, created its mate, and from the two of them spread abroad many men and women (4:1). It was Allah who created mankind out of one living soul, and created of that soul a spouse so that he might find comfort and rest in her (7:107).

    It is noteworthy that the Islamic Marriage provisions apply equally to men and women. E.g. if celibacy is not recommended for men, the same is true for women; Marriage is the normal course for both of them. Whatever dowry a man gives his prospective wife belongs to her exclusively and whatever she may have acquired before or after Marriage is hers alone. There is no statutory community of property of husbands and wives. Furthermore, it is the husband who is responsible for the support and economic security of the family. He must even provide his wife with the kind of help and service to which she was accustomed before Marriage. According to some jurists, the wife is under no legal obligation to do the routine housework, although she may do so, and usually does, as the family situation requires.

    (d) Marriage: Sacrament or Contract?

    The question of whether Marriage is a sacrament or a contract seems hardly applicable in Islam. The traditional conception implies, among other things, indissolubility of the marital bond, officiation by a priest, and benediction of the wedding ceremony. The sacramental definition of Marriage regards it as “a rite which removes the taboo on sexual intercourse between a man and a woman, while at the same time imposing a lifelong taboo on the intercourse of either of them with a third party.”

    The idea of sacrament seems to be related to the status of womanhood and the general attitude to sex. If a given system defines sex as an evil in itself, but unavoidable to prevent greater evils, it is expected that Marriage will not be encouraged under normal conditions and will be minimized when there is no other legitimate alternative. In such a system, celibacy will have priority. But when Marriage becomes necessary, it is likely to be of the monogamous type and to take on the features of a sacrament, not necessarily because the marital relationship is in itself a sacred bond, but perhaps because sexuality, as a necessary evil, will be restricted to a minimum. That situation will not arise if sex is defined favorably, in which case Marriage will be relatively more frequent and the marital bond less difficult to dissolve. The features of sacrament may not come into this picture at all; even if they do, it is unlikely that they will be in the forefront.

    A favorable view of legitimate sexuality does not seem more conducive to sexual violations than does the counterview. If this is so, the idea of sacrament will probably make little difference with regard to the frequency of actual violations of the sexual norms. The fact that the ancient Mediterranean and Near Eastern cultures did not define sex as evil and generally held women in low esteem may explain, at least in part, the absence of the doctrine of sacrament in their Marriage systems. Similarly, the ancient Hebrews and their descendents considered sex as evil and, technically if not in fact, generally held women in a subordinate position. This may explain that, while in Jewish law Marriage was conceived as a divine institution (Genesis 2:24), it was not regarded as a sacrament – “the priestly benediction is mentioned neither in the Bible nor in the Talmud, and the regular presence of a rabbi at a wedding is not earlier than the fourteenth century.”

    The case of Christianity is rather remarkable. Under the influence of eschatalogical expectations and oppressive social conditions, some leaders of early Christianity viewed both sex and Marriage quite negatively. To them, celibacy was the favored status, since it represented the highest virtue on the Christian value scale. When Marriage did take place among Christians, as it must have in most instances, it was expected to be of the monogamous, indissoluble type. Also, in common with, or perhaps in continuation of, the formal doctrinal Jewish tradition, early Christianity held a relatively low opinion of the spiritual qualities of women.

    The case of Islam is still more remarkable. The distinction between sacred and secular was never explicit in Islam. Any action or transaction has religious implications. Legitimate sex is not defined as evil. Women, at least in doctrine, are not held inferior to men on the spiritual level, since they are not thought of as “guilty” of any offenses from which men were, or are, free and immune.

    Moreover, Marriage in Islam was not conditional on officiation by a priest because, strictly speaking, there was no such office. Neither was religious benediction, though highly recommended for the occasion, a necessary requisite for the validity of the Marriage. Another factor of importance is that Islam sanctions Marriage to non-Muslim women who do not necessarily share the religious persuasion of their husbands, in which case a concept, e.g. sacrament, relevant to one party’s persuasion may not apply to that of another. Furthermore, the marital bonds are not indissoluble and conditional polygyny is lawful. These features would seem to preclude the traditional idea of sacrament in so far as Marriage in Islam is concerned.

    In Islam, Marriage is not only a contract, but also a covenant. It is not quite accurate, therefore, to designate Marriage in Islam as either a secular contract or a religious sacrament; it has elements of both. The appropriate designation would seem to be that of a “divine institution.”

    The Conditions of Marriage

    If Marriage in Islam is to be consummated and become valid, certain conditions must be satisfied. Some of these conditions pertain to the contract itself; some to the persons of the contracting parties. The general features are discussed here. When a Marriage is contracted, there must be a direct, unequivocal proposal followed by a corresponding acceptance thereof. Both proposal and acceptance must be explicit and oral if the contracting parties are present in person. Otherwise, a written form may substitute for the oral. That is, not the same as having the contract registered after its conclusion, a procedure which seems to have been introduced in later periods for administrative purpose. The words used in the contract must be directly derived from, or intimately related to, the root word of Marriage. Except in certain Shi‘i’s view, the contract must be free from any indication of temporality or limited duration, because this contradicts the very purpose of Marriage, which is the intention of making it a lifelong union. There must be at least two competent witnesses so that the progeny’s right of legitimacy will be safeguarded. The contract requires the contribution of a “dowry” or Marriage gift, by the groom to the bride. If the amount of the dowry is not specified in the contract, the Marriage is valid, and the dowry is to be estimated according to the customary standards. In any case, the bride may voluntarily return it in part or in toto to the groom.

    Related to the condition of witnesses is the question of publicity. Not only is Marriage to be intended as a lifelong bond, it must also be publicized widely. An agreement to keep the Marriage secret invalidates the contract, in the opinion of some jurists. Other jurists maintain that the contract is valid but that secrecy is non-religious and thus reprehensible. Publicity is the element which distinguishes legitimate unions from illicit ones. This was probably the reason for the Prophet (saws) to recommend Marriage feasts and sanction folk music and singing at wedding ceremonies.

    The contracting woman must be free from all marital bonds. That is, she must not be already married at the time of considering another Marriage. If she is widowed or divorced, she must be free from pregnancy, but if she is expectant, she must wait until the infant is born, after which time she may contract a Marriage. Neither must she be in a “waiting period,” which is the limited span of time that is to elapse before a widow or a divorcee may remarry. Nor must she fall within the forbidden degrees of blood, fosterage, or affinal relationships. She must be free from adultery and fornication; that is forbidden for the Believers. If she has committed any such offense, it is not lawful for her, in certain cases, to marry her co-offender, in the opinion of some jurists. Nor is it lawful for either to marry anyone within the forbidden degrees of the other party, according to some schools of law. For example, it is forbidden for her to marry the son or father of her co-offender, just as it is for him to marry her daughter or mother.

    Adultery or fornication is not only a sinful act; it also results in the curtailment of the personal freedom and social privileges of the violators. A free woman of sound mind and full age must give her consent to Marriage if the contract is to be valid. In the absence of legal guardian, wali, she must be of sound mind and have reached the age of puberty before she is allowed to marry. In every case the identity of each party must be known to the other.

    The contracting man must be a Muslim if the woman whom he wishes to marry is a Muslim herself. If he is already married, his present wife must not be related to the prospective bride in any degree that forbids him for maintaining the two contemporaneously. E.g. he may not marry the sister, niece or aunt of his present wife. Also, if he happens to have more than one wife, the number must be within the maximum limit of four. He cannot contract any new Marriage as long as his marital bond to the four is valid and intact. In the absence of a legal guardian, wali, he must be of sound mind, have reached the age of puberty, and must give his free consent, if his Marriage is to be valid.

    Dowry, Marriage-endowment, Marriage-gift

    Two basic types of dowry have been practiced. The first type is that which is paid by the groom or his family to the bride or her family. It normally consists of money, property or movable objects. Sometimes it is made up of gifts which are offered by the groom’s party and which may or may not be reciprocated by the bride’s. It may also consist of service rendered by the groom to the family of the bride. Further, a wife could have been acquired by means of exchange when a man agreed to exchange his daughter or ward for another’s. The second basic type of dowry is that which is rendered by the bride or her family to the groom or his family. This was common in some ancient societies and is still so in some modern ones. However, the two basic types of dowry are not mutually exclusive, nor are their subtypes.

    In Islam, dowry is the amount which a Muslim groom gives to his prospective bride. It is her personal property which she is empowered to waive, reduce, return to her husband, or dispense with as she pleases. It is enjoined by the Qur’an, the Traditions of the Prophet, and the consensus of Muslims. It may consist of money, property, movable objects, or services rendered to the bride herself. There is a Tradition that a Companion of the Prophet (saws) wanted to marry a certain woman but had nothing to offer her in dowry. The Prophet asked him to teach her whatever he knew of the Qur’an, and that sufficed as dowry. A certain Abu Talha proposed to a woman who, in reply to his proposal, said: “A man of your stature is not to be rejected; but you are a non-Believer and I am a Muslim. It is unlawful for me to marry you. If you embrace Islam, that will be my dowry and no more will I ask of you.” He then embraced Islam and that was her dowry.

    Similarly, if a master wishes to marry his slave girl and offers her freedom as a dowry, both the offer and the Marriage are valid. It seems important that Islam has made it a divine injunction, not a custom, that the bride alone has the right to dowry and only she may dispose of it as she pleases. Apart from any moral effect that this change may have had on the status of women, the social consequences were equally important. Payment of dower to the bride herself probably minimized the element of self-interest and power of the guardian in his choice of a husband for the ward. He became mainly concerned with what was best for the woman. This and other changes made by Islam “tended to remove control over their affairs from the women’s male relatives and protectors and to vest it in themselves.”

    The position of Islam on the limits of dowry is also significant. The general principle is that dowry should be estimated according to circumstances with emphasis on moderation. The Prophet (saws) is reported to have said that the most blessed Marriage is that which is least costly and most easy. Hence, the great majority of jurists set no minimum to dowry. In fact, there were cases in the Prophet (saws)’s lifetime and thereafter where dowry was as low as two Dirhams, or less than one dollar. The schools of law that set a minimum to dowry, made it merely nominal. On the other hand, all schools of law agreed that there is no maximum limit to dowry. However, moderation is recommended; some jurists have preferred it to be within the limit of five hundred Dirhams, nearly 150 dollars, which was the amount sometimes paid by the Prophet (saws) himself or received by his daughters.

    Marriage Guardianship

    One of the problems directly connected with the conditions of marriage is marriage guardianship or wilayah al Nikah. Marriage guardianship is the legal authority invested in a person who is fully qualified and competent to safeguard the interests and rights of another who is incapable of doing so independently. It is the authority of a father or nearest male relative over minors, insane, or inexperienced persons who need protection and guardianship. There seems to be an overlapping of guardianship in this sense and other forms of legal representation and delegation. To clarify this issue, a distinction must be made between the Marriage guardian and an ordinary legal representative. The former is normally the nearest male relative in whose absence a community official may assume the responsibility. Whether guardianship is considered as a right conferred on or as a duty assigned to the guardian, the fact remains that it is ascribed by law and neither party can terminate it unilaterally so long as the conditions calling for it exist. Moreover, a guardian is qualified only if he satisfied certain requisites. He must be a free Muslim male, of sound mind, of full age, and of good character. A legal representative, wakil, on the other hand, is a person who has agreed, through private arrangements, to represent another party within limits of authority delegated to him by the principal party. Such a delegated authority may include arrangements of Marriage subject to the approval of the principal party and, in some cases, of the guardian.

    The law books focus on the woman’s need for guardianship because she is usually said to lack experience in practical affairs and, hence, may be intrigued into commitments contrary to her interests. Moreover, if she contracts Marriage in her own behalf, she may give the impression of being inconsiderate, presumptuous, and inclined to intermingle with men unnecessarily – actions which would customarily stigmatize her character.

    The law books focus on the woman’s need for guardianship because she is usually said to lack experience in practical affairs and, hence, may be intrigued into commitments contrary to her interests. Moreover, if she contracts Marriage in her own behalf, she may give the impression of being inconsiderate, presumptuous, and inclined to intermingle with men unnecessarily – actions which would customarily stigmatize her character. For such reasons, the jurists argue, a guardian is required to protect the woman’s interest, to safeguard her moral integrity, and to take all possible precautions to maximize the probability of a successful Marriage. And, because the father’s love and care for his daughter are usually taken for granted, he is the first man to qualify as her guardian provided, of course, that he meets the other requisites of guardianship.

    The role of the Marriage guardian may be defined as a right conferred on him by law, empowering him to act on his ward’s behalf with or without regard to her wishes. It may also be considered as a duty assigned to him by law and by virtue of his responsibility for the ward’s welfare.

    Authorities of all schools of law are, according to a view, unanimous in characterizing Marriage guardianship as “.. the right to assist a woman at her Marriage. Guardians are expected to act in the ward’s interest and, generally speaking, in conformity with her wishes.”

    Muslims jurists who insist on Marriage guardianship seem to consider it a duty rather than a right of the guardian, or at least a synthesis of both. While the guardian has the right to negotiate and conclude a Marriage on his ward’s behalf and to give his consent or object to her “unwise” choice, it is his duty to exercise this right in her best interest. To fulfill this duty, he must have the right to participate in the decision-making process and avail of his experience in helping her. But, to have this right, his ability to exercise it in the best interest of the ward must be demonstrated. He must also meet certain moral and personal requisites. These are stipulated to insure that in all probability he will neither neglect his duty nor abuse his right.

    However, is spite of these precautions, negligence and abuse do occur and guardians do make unwise decisions. In such a case, a ward, if a major, has a religio-legal right to over-ride his decisions. She may request the legal authorities to annul any contract concluded against her will or which falls short of her expectations. There were such cases in the time of the Prophet (saws) who revoked the Marriage contracts upon the request of the women concerned.

    Marriage of Minors

    Marriage in minority would seem to imply a betrothal or some formal agreement, deferring final consummation to a later date. This type of child “Marriage” is probably best explained by the desire to draw families together and to facilitate social integration.

    Given the low sex ratio and racial plurality of Muslim society, the need for social integration and the high value of sexual purity and virginity, it may become understandable why Islam set no age limits on Marriage. Preliminary arrangements may have been made at an early age, but consummation usually took place when the parties were fit for marital congress, which depended, among other things, on their physical conditions. However, the lawfulness of such Marriages does not necessarily mean that they were predominant. Nor were they peculiar to any society, region or generation. E.g. in Abyssinia in the sixth century a law was issued prescribing forcible intermarriage between Christians and baptized Jews. Accordingly, no boy or girl over thirteen was to remain unmarried, because such early Marriages “would lead to speedy amalgamation of the communities.” At various times, very youthful marriages prevailed among the Jews, and in the second half of the seventeenth century, “the bridegroom was frequently not more than ten years old and the bride was younger still.” The Roman law stipulated that a man may marry at the age of fourteen and a woman at the age of twelve. This law was adopted by the Church and is still preserved in various countries, including some regions of U.S.A.

    At various times, very youthful Marriages prevailed among the Jews, and in the second half of the seventeenth century, “the bridegroom was frequently not more than ten years old and the bride was younger still.”

    In England, Marriages at these ages “were valid without the consent of parents till the year 1753…” Islam prescribes that, no matter at what age betrothal may take place, final consummation must be delayed until the parties are ready for marital relations, a condition usually determined by puberty. In any case, the law prescribes that all Marriage arrangements must be made in the best interest of the minors involved. It is unlawful to do anything disadvantageous to them. To guard against possible misjudgment, Islam has made certain specific requirements. First, Marriage in minority is invalid without the consent and participation of the guardian. In this respect, Islam agrees with other religious and legal systems of ancient and modern times. Second, Islam does not entrust this responsibility to a parent or guardian per se, but to those who, in addition to parenthood, must have certain qualifications sufficient under normal circumstances to ensure a good sense of judgment and conscientiousness. Third, Islam has, according to many jurists, given to minors the so-called “option of majority.” A minor who has reached the age of puberty is free either to uphold or annul a Marriage contract that was concluded on his or her behalf while in minority. Taken together, these measures seem to suggest that, in the final analysis, the minor’s interest and welfare are the focal point of the law.

    Compulsion versus Freedom in Marriage

    As regards compulsion in Marriage, several preliminary points must be noted. First, in no society is there unchartered freedom of marital choice. The social structure defines and limits the so-called “field of eligibles,” if only because of rules governing incest and ethnocentric preference. Second, the more functional and interdependent the family, the higher the probability that Marriages will be “arranged” and the marital freedom of the principals curtailed. Third, arranged Marriages do not necessarily ignore the wishes and consent of the principal parties, nor does the freedom of choice of the principals preclude the influence, wishes or consent of the parents. In practice, “The actual influence of the woman’s wishes is, of course, often a question of fact rather than of right.” Fourth, in almost every known society, the parents are believed to have exercised authority, great or small, in the Marriages of their children. This authority may be based on the custom, law, veneration for parents, the power to disown the children, or the mere recognition of the children’s helplessness and dependence on the parents.

    From an Islamic standpoint, compulsion in Marriage is probably more imaginary than real. Taken as presented in the law books, the problem may be outlined in the following way. All schools of law agree that if it is feared that a woman will engage in sexual misbehavior, the guardian or even the sovereign may force her to marry to protect her and other people from her misbehavior. Public morality and the individual’s own integrity take priority over personal freedom when they come into conflict.

    There is also agreement that a father may give his daughter in Marriage, with or without consent, provided she is (a) under age (nine years old or younger), (b) virgin, and (c) is given in Marriage to a suitable, socially equal husband.

    If a woman is “virgin,” of sound mind, and adult, i.e. has reached the age of puberty, it is lawful, according to some jurists, for the father to give her in Marriage with or without her consent, provided the prospective husband is suitable and of equal status. The explanation offered is that such a woman who has had no marital experience is in no position to know where her real interest lies. She is as inexperienced as the girl who is underage. These jurists do not deny the Traditions of the Prophet where he is reported to have said that the consent of a virgin is to be sought and her silence is evidence of her approval. But they interpret these Traditions as meaning that it is only “commendable,” not necessary, to seek the girl’s consent. However, other jurists deny such authority to the father and hold the girl’s consent a necessary condition for the validity of her Marriage.

    If a woman is “virgin,” whether adult or underage, and her father gave her in Marriage, without her consent, to a husband who is not her equal, the general view is that such a Marriage is invalid. The reason is that the father has done something contrary to her interest and in violation of his trust. However, a minority of jurists hold the view that (a) such a Marriage is valid because equality in Marriage is not a necessary condition, and the “defect” of inequality does not invalidate the contract, (b) the Marriage is invalid only if the father was aware, before the contract, of the husband’s unequal status, and (c) the Marriage is invalid if the girl is underage; otherwise, the contract is formally legal, but she may revoke it by other means if she so desires.

    A woman who is of age and is a widow or divorcee is free to make her own choice. The father may not force her to marry against her wishes. This is supported by the traditions of the Prophet and by common practice, because such a woman is experienced and would normally understand the implications of Marriage. She is unlikely to be easily misguided.

    In summary, the juristic views on compulsion in Islam are varied. Some permit certain guardians to impose the status of Marriage on their wards. The basis of the guardian’s authority in this respect is his assumed concern for the welfare of the ward. There are wide differences of opinion concerning the factors which justify compulsion. These include virginity, minority, womanhood, as such, and dependence on the guardian.

    However, the Qur’an or the Prophet do not approve of such coercive authority. There are authentic reports that some fathers gave their daughters in Marriage without their consent, but probably not without good intentions. Yet such Marriages were revoked when the women concerned objected to them.

    It is reported that some families, particularly in Madinah used to marry their daughters off without asking for their explicit consent. But this probably meant that tradition-bound parents used to arrange the Marriages of their children and take the latter’s approval for granted. To assume that arranged Marriages automatically preclude consent or even romantic love seems unwarranted. The children’s approval of what the parents do on their behalf is probably expected or taken for granted. They may not say anything either to approve or disapprove a father’s selection. But silence is taken by Muslim jurists as an indication of approval, not of coercion or resentment. A ward has the right to revoke a Marriage if he or she disagrees with his/her guardian’s arrangements. In law, there are various grounds to annul any Marriage contract that is disadvantageous or disagreeable to either principal. Since in Islam, every act is also a religious act, it is thus expected to be conceived and executed with the best intention and to the satisfaction of God. If it results in harm or inequity, Islam demands that this must be remedied. Some jurists have theorized that in certain cases fathers or guardians may impose the status of Marriage on their wards.

    Kafa’ah in Marriage

    The question of “social equality in Marriage” is but one dimension of the general problem of mate selection. The idea that love is blind and is the decisive factor in mate selection is not the universal norm of any society, notwithstanding some popular misconceptions. Mate selection has been governed by rules and considerations that may or may not include the priority of love. Mate selection, therefore, is neither random nor strictly personal; rather, it is patterned and hence largely predictable. In this connection, two major theories have been advanced. According to the theory of homogamy, “people tend to marry people who are in various social ways like themselves….” But, on the other hand, marital choice “is not altogether a matter of similarities; rather, it seems to some extent to be a matter of social similarities and psychological differences.” This is the theory of heterogamy or complementary needs, according to which “every individual seeks within his or her field of eligibles for that person who gives the greatest promise of providing him or her with maximum need gratification.”

    In every society there is a field of eligibles for every marriageable person. The field of eligibles may be narrow or wide, depending on the stratification system and cultural values of the society. However, the two theories are not mutually exclusive. Every society envisions an ideal mate who may or may not actually fall within a given person’s field of eligibles. To the pre-Islamic Arabs, the ideal wife was one who had honor and noble ancestry (not necessarily identified with wealth), virtue and good manners, youth and virginity, fecundity and moderate beauty, modesty and chastity, intelligence and affection, integrity and eloquence, energy and productivity, grace and cheerfulness. A woman who approximated these standards was considered by men of the highest social standing a most desirable mate. On the other hand, the ideal husband had to be young and of Arab descent. It was disgraceful for Arabs to marry their women to non-Arabs. The literary evidence suggests that young women preferred young mates, however poor and destitute, to old suitors of wealth and fame. Moreover, the ideal husband had to be affectionate and honest, companionable and cheerful, generous and brave, noble and faithful. He had to be the social equal of his mate in lineage, honor and fame. The tribe of Quraysh, in particular, adopted the additional practice that their daughters could be married only to suitors who followed the same tribal religion.

    The pre-Islamic society of Arabia may not have been highly differentiated, but there can be little doubt that it was stratified and had some criteria of social equality. When Islam was established as the community religion, the ideological situation changed and a new criterion was adopted. Accordingly, every individual was to be ranked first on the basis of his religious virtues which may or may not agree with certain traditional values. All Muslims were regarded as equals in the sight of God and brother of one another; the only recognizable criterion of ultimate distinction was that of piety or God-mindedness (taqwa). There are authentic traditions that the Prophet ranked the religious virtues of a prospective mate above everything else. He himself encouraged the Marriage of some former slaves to women of the Quraysh tribe, whose members enjoyed the highest social standing and to whom such Marriages would probably have been inconceivable, were it not for the “egalitarian spirit” of Islam. “Social equality” was thus replaced by the new concept of “religious equality.”

    Islam affirmed that new principle of religious equality and recognized piety as the ultimate valid criterion of distinction. But, on the other hand, it did not altogether reject t

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