Islamic law – Lectures 2, 3, and 4

Marriage

Once a party has entered into a contract, there are certain rights of a husband and a wife.

Mutual Rights
1. Legitimacy of the offspring
2. Inheritance from another’s state
3. Sexual Relations

Rights of the wife

- One of the major rights of the wife is maintenance which means a periodic payment by
the husband to the wife
- Maintenance is husband’s duty ad must be paid even if the husband is poor and the wife
is rich. (Based on the Islamic understanding that the economic responsibility rests with
the husband)
- Maintenance includes provision for an accommodation, food, clothing, and servants.
- Maintenance requires the husband to provide a sharia compliant dwelling i.e., a house
which is structurally safe and is free from other family members including the cowives.
(Exception can be the infant children from other cowives).
- The amount of maintenance will depend upon the economic capacity/standard of living.
In Hanafi, Malaki and Hanbli schools of thought, the amount of maintenance will be the
mean of husband and wife’s previous standard of living.
- In shafi school of thought, the amount of maintenance will be on husband’s standard of
living.
- In Ithna Ashari, the amount of maintenance will be according to the wife’s standard of
living.
- Maintenance is payable from consummation of marriage until death of either party or
dissolution. Maintenance is not payable from the husband’s estate unless there is a
pending payment.
- The right of maintenance is attached to the duty of obedience hence this is a reciprocal
right to the husband’s right of obedience, (living together).
- If the husband refuses to make the payment, the wife can choose to leave.
- Dower is not payable in Misyar Marriage. (Walking Marriage)
Islamic law – Lectures 2, 3, and 4
Marriage

Rights of husband
- Polygamy; can marry more than once
- Woman’s consent is not required
- In pre–Islamic Arabia, a man could have unlimited wives, but in Islamic it was restricted
to having not more than 4 wives.
- Each wife shall be dealt equally in terms of spending time. This right is not a legal right
but rather a moral one.
- All schools of thought believe that the consent of wife is not required for a subsequent
marriage. However, there are certain restriction upon a man that they can marry only 4
women at one time and if there is a fifth wife then the marriage will be irregular.
- In Ithna Ashari, a man can marry more than four wives, provided it is a Muta’ marriage.
- A man is not allowed to marry two sisters, mother/daughter, blood foster at the same
time.
- Husband needs to provide a separate dwelling and maintain each wife according to the
standards of living.

Unwilling Co-wives:
- The traditional law provides no solution to unwilling cowives. In hanbli school of
thought, the wife can insert a clause in the contract that the husband will not enter into a
subsequent marriage.
- All other schools of thought believe that it is a Quranic right and cannot be limited by a
contractual provision and hence it is not valid.
- There is a concept of “Talaq e Tafwid” (delegated divorce), this means that the wife can
give talaq to herself as she has been delegated a right and will not have to forgo dower.
- In Malaki school of thought, there is one more remedy known as judicial khula on the
grounds of ‘Dhara’ (Psychological harm)

Reforms of Polygamy:

Tunisia:

Tunisia banned polygamy and relied on a famous jurist called Abu Muhammad
(Muhammad Abduh) that two verses of Quran 4:3 and 4: 121 shall be read together
meaning that no matter how hard a man tries, he cannot spend equal time with each wife.
This is a classical example of Neo-Ijtihad

Syria and Middle Eastern Countries:

- In Syria, a man requires courts permission before entering into a subsequent marriage.
Islamic law – Lectures 2, 3, and 4
Marriage

- The courts will only grant permission if the husband can prove lawful justification and is
capable of maintaining the cowives.
- Most of the countries in middle east have adopted the approach of Syria and the only
condition is to maintain the wife.

Morocco:

In 2004, Morocco introduced that if a husband needs to enter into a subsequent marriage,
you need the court’s permission and it will only be granted if the husband can treat the
wives equally and give equal maintenance to all the children of all the wives.

Egypt:

In 1985 and prior to this date, a man in Egypt must disclose the name and address of the
subsequent wife to the court and then the court will grant permission. The courts will also
inform the existing wife regarding the subsequent marriage and she will have one year to
file the divorce.

Iraq:

In Iraq, the husband must prove that there is a lawful benefit from the second marriage.
All schools of thought adopt this approach along with the middle eastern countries.

Pakistan:

In Pakistan, you do not require the court’s permission and we have adopted the hanbli
approach where the only consent required is from the union council. (Local government).
Under s.6 of the Muslim Family Laws Ordinance 1961, it states that if a man needs to
enter into a subsequent marriage, they need the permission of the union council and must
obtain the consent from the same.
The local council will form a council of arbitrators which are:
1. Council Chairman
2. One representative from husband’s side
3. One representative from wife’s side

These three will decide whether the husband shall enter into a subsequent marriage or
not. There should be one of the grounds for seeking the permission from the union
council (refer to notes). If the husband enters into a subsequent without the permission,
the wife can file a divorce under dissolution of marriages.
Bangladesh
Islamic law – Lectures 2, 3, and 4
Marriage

In Bangladesh, the same approach has been taken, where it is required to take the
permission of the union council. In the famous case of Yasmin Sultana v Muhammad,
there was an obiter statement made by one of the judges that the correct approach for
subsequent marriages is the one taken by Tunisia.

India
In India, all the Muslims are allowed to practice their own religion including the fact that
husbands are allowed to enter into a subsequent marriage. However, if a Muslim man
enters into a subsequent marriage and the wife is unwilling then she can seek a
dissolution under Muslim Marriages Act 1889.
One of the grounds for dissolution is torture and in the recent case of Itwari v Asghari it
was held that torture is an extremely wide term but it will be considered as a valid ground
for dissolution.
In India, government Muslim officers cannot enter into a polygamous marriage
Islamic law – Lectures 2, 3, and 4
Marriage

Impediments of Marriage:
- There are two types of impediments i.e., permanent and temporary.
Permanent impediments:
1. Blood Relatives
2. Foster Relationships
3. Affinity Relationships i.e., ex step mother/ex step father
Temporary Impediments:
1. Already married women
2. Women in Iddah
3. If a marriage has been repudiated three times unless performed Iddah or married another
man.
4. Two sisters or mother daughter
5. A man who already has four wives
6. A non-Muslim woman not following the book

Effects of the Impediments:

- Permanent impediments render the contract of marriage void.
- All other impediments render the marriage irregular.
- A void marriage will constitute as Zina
- An irregular marriage can be converted into regular and sexual relationship will not
constitute as Zina. However, if parties separate in an irregular marriage, the woman needs
to perform Iddah.
- In India, Mughals married Muslim Women and the child was considered legitimate.