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MARRIAGE
(According to the Qur'an and Sunnah,
as extracted and inferred by scholars of the Hanafi school.)
From "Mukhtasar
al-Quduri", a matn of Hanafi fiqh
1.0 THE SPOKEN FORM
- Marriage is contracted by proposal and acceptance, in two
statements,
| - both of them expressing the past tense, or |
| - one of them expressing the past and the other the
future, such as one saying, ‘Marry [your daughter] to me,’ and the
other saying, ‘I have married [her] to you.’
| If a man marries a woman off without her
permission, or [marries off] a man without his permission, [the
marriage is contingent on their acceptance]. |
|
Marriage is contracted by the words of marriage, wedding,
transfer of possession, gift, or charity.
2.0 WITNESSES
- The marriage of Muslims is not contracted without the
presence of two free, adult, sane, Muslim [male] witnesses, or one man and
to women, [whether they be] morally upright or non-upright, or [even]
inflicted with the prescribed punishment for slander.
| If a Muslim married a dhimmi woman with the
witnessing of two dhimmi men, it is valid according to Abu
Hanifah and Abu Yusuf. Muhammad said : It is not valid. |
3.0 PROHIBITED PERSONS
3.1 Prohibition by Kinship
It is not lawful for a man to marry:
- His mother, nor his maternal or paternal grandmothers,
- His daughter, nor his granddaughters, and lower
- His sister
- His [niece] : his sister’s daughter or his brother’s
daughter
- His paternal aunt
- His maternal aunt
- His wife’s mother, whether he has consummated with her
daughter or not
3.2 Prohibition by Marriage Ties
- The daughter of his wife with whom he has consummated,
whether she is under his guardianship or the guardianship of someone else
- His father’s or grandfathers’ wife
- His son’s or grandson’s wife
- Whoever commits fornication with a woman, her mother and
daughter become unlawful to him.
- [A thrice-divorced ex-wife unless she has since consummated
another marriage.]
3.3 Prohibition by Suckling
- His foster-mother
- His foster sister
3.4 Prohibition of Combination
- He may not combine two sisters in marriage, nor as
slave-girls for intercourse
| If a man divorced his wife with an irrevocable divorce,
it is not permissible for him to marry her sister until [his wife’s]
waiting period is over.
|
He may not combine a woman with her paternal or maternal
aunt, nor with her [niece:] sister’s daughter or brother’s daughter.
He may not combine two women [who are such that], if one of
them were a man, it would not be permissible for her to marry the other.
There is no objection to combining a woman with a daughter
a husband she had previously.
A free man may marry four - free women or slave-girls, and
he may not marry more than that. If a free man divorces one of the four with
an irrevocable divorce, it is not permissible for him to marry a [new]
fourth [wife] until the waiting-period of [the other] is completed.
3.5 Prohibition by Religion
- It is permissible [but disliked for a Muslim man] to marry
women of the People of the Book, but it is not permissible to marry
Zoroastrian women, nor idolatrous women.
- It is permissible to marry Sabean women if they believe in
a prophet and affirm a scripture, but if they worship the planets, and have
no scripture, then it is not permissible to marry them.
4.0 THE WALI
4.1 Precedence for Wilayah
- The wali is a paternal male relative.
| If there exist for an insane woman both her her father
and her son, then the wali in her marriage is her son according to Abu
Hanifah and Abu Yusuf. Muhammad said : [it is] her father.
|
A slave, minor, insane person, or unbeliever, have no
wilayah over a Muslim woman.
Abu Hanifah said : it is valid for non-male relatives to
marry of the women [if males are not available].
If the immediate wali is disjointedly absent, then it is
valid for someone beneath him [in predence] to marry [the women off]. A
disjointed absence is that he be in a city where the caravans reach only
once a year.
4.2 Compatibility
- Compatibility in marriage is taken into consideration. So,
if a woman marries an incompatible [man], the wali has the right to separate
them.
- Compatibility is considered in:
| lineage |
| religion |
| wealth, which is that he be in possession of the mahr
and maintenance. |
| profession. |
4.3 Authority of the Wali
- According to Abu Hanifah, the marriage of a free, adult,
sane woman is contracted with her consent, even if there no wali performs
the contract for her, whether she is virgin or not. Abu Yusuf and Muhammad
said : it is not contracted without a wali.
- It is not permissible for the wali to coerce an adult
virgin to marry [someone].
- If he asks for her permission, and she remains silent, or
giggles, that is [indicative of] her permission. But, if she refuses, he may
not marry her off.
| If the husband says, ‘The marriage [proposal] reached
you, and you remained silent,’ but she says, ‘No, I refused it.’
then the word is hers, and there is no oath due on her. There is no
extraction of oath in marriage according to Abu Hanifah. [But] Abu Yusuf
and Muhammad said : oaths are extracted in it.
|
If he asks the permission of a non-virgin, her consent in
words is essential.
| If her virginity was removed by jumping, or
menstruation, or an injury, then her is that of the virgin. |
| If it was removed by fornication, then the same
according to Abu Hanifah.
|
The marriage of a minor male or female is valid if the wali
marries them off, whether the minor girl is a virgin or not.
If [two minors] were married off by the father or
grandfaather, then they do not have a choice after reaching maturity. But,
if other than the father or grandfather married them off, then each of them
has the choice when they reach adulthood : if he wishes, he may continue in
the marriage, and if he wishes he may annul it.
If a woman marries and keeps her mahr lower [than her
peers] then the wali has the right to object to that, according to Abu
Hanifah, until [the husband] makes up the mahr of her peers or separates
from her.
If a father marries off his minor daughter anbd keeps her
mahr lower [than her peers], or [marries off] his minor son and exceeds in
the mahr of his wife, that is valid for them. But that is not permissible
for other than the father and grandfather.
It is valid for a paternal uncle’s son to marry the
daughter of his paternal uncle to himself.
If the woman gives permission to a man to marry her to himself
in the presence of two witnesses, [the contract] is valid.
5.0 MAHR (MARRIAGE PAYMENT TO THE BRIDE)
5.1 Specification
- The marriage is valid if a mahr was named in it, and it is
valid [even] if no mahr was named in it.
| If a man marries off his daughter [to a man] on
condition that the man marry off hsi sister, or daughter, such that one
of the contracts is in exchange for the other , then both contracts are
valid, but each of [the women] is entitled to the mahr of her peers.
|
- The minimum mahr is 10 dirhams, and so if he named less
than 10, she is entitled to 10.
| If a Muslim marries [a woman] on [a mahr of] wine, or
pork, then the marriage is valid, but she is entitled to the mahr of her
peers. |
| If he marries her on [a mahr of] an undescribed animal,
the naming is valid, and she is entitled to a medium one. The husband
has a choice : if he wishes, he may give her that, or if he wishes, he
may give her its value [in money]. |
| If he marries her on [a mahr of] an undescribed garment
then she is entitled to the mahr of her peers. |
| If a free man marries a woman on [a mahr of] service to
her for a year, or for teaching her Qur’an, then she is entitled to
the mahr of her peers.
|
- The dower of her peers is reckoned by [consideration of]
her sisters, paternal aunts and paternal uncle’s daughters. It is not
reckoned with reference to her mother and maternal aunt if they are not of
her tribe. That which is taken into account in [ascertaining] the mahr of
her peers is :
that the two women are equivalent in age, beauty, modesty,
wealth, intelligence, religiousness, country and time.
- If he added to [the amount of] her mahr after the contract,
he is obliged to [pay] the additonal amount, but it is waived by divorce
before consummation.
If she waived [some] of her mahr from him, the waiver is
valid.
5.2 Entitlement
- 1. If a man is secluded with his wife, and there is no
hindrance from intercourse, and then he divorces her, then she is entitled
to the complete mahr. But, if one of them is ill, or fasting in Ramadan, or
in ihram for obligatory or superogatory hajj or `umrah, or she is
menstruating, then it is not a valid seclusion.
| If a castrated man is in seclusion with his wife, and
then divorces her, then she is entitled to the complete mahr according
to Abu Hanifah.
|
- Whoever names a mahr of 10 [dirhams] or more is obliged [to
pay] the named [amount] if he consummates with her or dies leaving her.
| If he divorces her before consummation and seclusion,
then she is entitled to half of the named amount.
|
- If he marries her and does not name a mahr, or he marries
her on condition that she will have no mahr, then she is entitled to the
mahr of her peers if he consummates with her or dies leaving her.
| If he divorces her before consummation, then she is
entitled to compensation, which is three garments of her peer’s usage.
|
- If he marries her and does not name a mahr, and then they
mutually agree to name a mahr, then she is entitled to it if they consummate
or he dies leaving her. If he divorces her before consummation then she is
entitled to compensation.
- It is recommended [for a man to give] compensation to every
divorced woman except one [for whom it is essential,] and that is the one he
divorced before consummation and for whom he did not name a mahr.
- If the wali guarantees the mahr, his guarantee is valid,
and the woman has a choice between demanding [it] from her husband or [from]
her wali.
- If [a man] marries a woman on [a mahr of] one thousand
[being less than the mahr of her peers] on condition that he will not take
her out of the country, or on condition that he will not marry over her,
then if he fulfils the condition she is entitled to the named [mahr]. But,
if he marries over her, or takes her out of the country, then she is
entitled to the mahr of her peers.
6.0 TERMINATION OF A MARRIAGE
6.1 Invalidation of a Marriage
- It is valid for a man and woman in ihram to marry one
another in the state of ihram.
- Mut`ah marriage and time-limited marriage are invalid.
- If the judge separates the two spouses of an unsound
marriage before consummation, then she is not entitled to a mahr, and
similarly after seclusion. But, if he consummated with her then she is
entitled to the mahr of her peers, [but] it may not exceed the named [mahr].
The waiting period is due upon her, and the lineage of her child is
established.
- Whoever marries two women in one contract, one of them not
being lawful to him to marry, the marriage of the one who is lawful for him
to marry is valid, and the marriage of the other is invalidated.
6.2 Physical Defects
- If the wife has a defect, then her husband has no power of
choice.
- If the husband is afflicted with insanity, or white or
black leprosy, then the wife has no power of choice according to Abu Hanifah
and Abu Yusuf. Muhammad said : she has the power of choice.
- If he is impotent, the judge adjourns him for a year, and
then if he reaches her [during that time, the marriage continues] otherwise
he separates them if the woman requests that. The separation is an
irrevocable divorce. She is entitled to the entire mahr if he had been
secluded with her.
The castrated man is adjourned just as the impotent one is
adjourned.
- If [the husband] is [a man with] dissevered [genitals] then
the judge separates them immediately, and does not adjourn him.
6.3 Embracement of Islam
- If a woman embraces Islam and her husband is an unbeliever,
the judge presents Islam to him. Then, if he accepts Islam, she is [still]
his wife, but if he refuses [the judge] separates them, and that is an
irrevocable divorce according to Abu Hanifah and Muhammad. Abu Yusuf said :
it is a separation without divorce.
- If a husband embraces Islam with a Zoroastrian woman under
him, [the judge] presents Islam to her. Then, if she embraces Islam, she is
[still] his wife, but if she refuses, the judge separates them. This
separation is not a divorce, but if he had consummated with her she is
entitled to the mahr. If he had not consummated with her then there is no
mahr for her.
- If a woman embraces Islam in Dar al-Harb,
separation does not take effect on her until she has menstruated three
menstrual periods. Then, when she has menstruated [thrice], she becomes
separated from her husband.
- If the husband of a Kitabi woman embraces islam, they
[continue] upon their marriage.
- If one of the two spouses comes out to us from Dar al-Harb
as a Muslim, separation takes effect between them.
- If a woman comes out to us as an emigree, it is permissible
for her to marry, and there is no waiting period [due] upon her according to
Abu Hanifah. But, if she is pregnant, she may not marry until she delivers
her load.
- If an unbeliever married without witnesses, or in the
waiting period of an unbeliever, and that is legitimate according to their
religion, and then they both embrace Islam, they are asserted in it. But if
a Zoroastrian married his mother, or his daughter, and then they both
embraced Islam, they are separated.
6.4 Apostasy
- If one of the two spouses apostasizes from Islam,
separation occurs between them without divorce. Then,
| If the apostate is the husband, and he has consummated
with her then she is entitled to the entire mahr. |
| If the woman is the apostate before consummation then
there is no mahr for her. But, if the apostasy is after consummation,
she is entitled to the mahr. |
| If they both apostasize together and [then] embrace
Islam together then they [continue] upon their marriage.
|
- It is not permissible for an apostate to marry a Muslim
woman, nor an unbelieveing woman, nor an apostate woman. Similarly, an
apostate woman may not be married by a Muslim man, nor an unbeliever nor an
apostate.
- If one of the spouses is Muslim then the child [continues]
upon his religion. Similarly, if one of the two [spouses] embraces Islam and
has a minor child, his child becomes Muslim by his [parent’s] Islam. If
one of the two spouses is a Kitabi and the other Zoroastrian then the child
is a Kitabi.
7.0 TREATMENT OF WIVES
- If a man has two free-women wives, it is [obligatory] upon
him to be just with them in division [of nights, clothing, food and
companionship], whether they were both virgins, or both non-virgins, or one
a virgin and the other a non-virgin.
- They have no right to division in the circumstance of
travel. The husband may travel with whomever he wishes of them, but the more
appropriate [procedure] is that he draw lots between them, and then travel
with whichever [wife] has her lot drawn.
- If one of the wives consents to forgo her share for her
co-wife, it is valid, but she is entitled to revoke that.
8.0 SUCKLING
8.1 Period of Suckling
- A little and a lot of suckling is the same [as far as
regulation]. If it occurs in the period of suckling, [the ruling of]
prohibition is attached to it.
- The period of suckling, according to Abu Hanifah, is thirty
months. Abu Yusuf and Muhammad said : two years.
- Then, when the period of suckling has expired, no
prohibition is attached to suckling.
- In suckling, the testimony of women alone is not accepted.
[Suckling] is only established by the testimony of two men, or a man and two
women.
8.2 Mixing of the Milk with Other Substances
- If milk is mixed with water, and the milk is predominant,
prohibition is attached to it, but if the water is predominant, prohibition
is not attached to it.
- If [milk] is mixed with food, prohibition is not attached
to it, even if the milk is predominant according to Abu Hanifah.
- If [milk] is mixed with medicine and [the milk] is
predominant, prohibition is attached to it.
- If milk is mixed with the milk of a ewe, and the [human]
milk is predominant, prohibition is attached to it, but if the ewe’s milk
is predominant, prohibition is not attached to it.
- If the milk of two women is mixed, prohibition is attached
to the preponderant of the two according to Abu Hanifah and Abu Yusuf.
Muhammad said : It is attached to them both.
8.3 Source of the Milk
- If milk is extracted from a woman after her death, and an
infant is fed with it, prohibition is attached to it.
- If milk comes forth from a virgin, and she then suckles an
infant with it, prohibition is attached to it.
- If milk comes forth from a man, and he then suckles an
infant with it, prohibition is not attached to it.
- If two infants drink the milk of a [single] ewe, there is
no [relationship of] suckling between them.
8.4 Prohibitions through Suckling
- Suckling makes prohibited all that kinship makes
prohibited, except for
| The mother of his foster-sister, and so he may marry
her, although he may not marry the mother of his sister by kinship, and |
| The sister of his foster-son; he may marry her,
although he may not marry the sister of his son by kinship.
|
The wife of his foster-son he may not marry, just as he may
not marry the wife of his son by kinship.
The wife of his foster-father he may not marry, just as he
may not marry the wife of his father by kinship.
- A man may marry the sister of his foster-brother, just as
he may marry the sister of his [half-]brother by kinship. That is, for
example, like a paternal brother, if he has a maternal sister; it is
permissible for his paternal brother to marry her.
- Prohibition is attached to the milk due to a man, which is
that the wife suckles a girl, and so then this girl is prohibited to her
husband, and to his fathers and sons. The husband from whom the milk is
derived becomes a [foster-]father to the suckled girl.
- [For] any two infants that share a breast, it is not
permissible for one of them to marry the other.
- It is not permissible for a suckled girl to marry any one
of the sons of the woman who suckled her, nor her son’s sons.
- A suckled boy may not marry the sister of the
foster-woman’s husband, because she is his foster-aunt.
- If a man marries an infant girl and an adult woman, and
then the woman suckles the infant, they both become prohibited to the
husband. If he had not consummated with the woman, then there is no mahr for
her, but the infant is entitled to half the mahr. The husband may claim it
from the woman is she had deliberately used that for invalidation [of the
marriage]. If she had not done it deliberately then there is nothing due
upon her.
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