The First Pillar of Marriage Contract
- :Sachiko Murata
Adopted from the Book : "Temporary Marriage in Islamic Laws" by : "Sachiko Marata"
A. The Formula (sigha)
Marriage is legalized by a contract ('aqd), which, like all other contracts in Islam, consists of a declaration (ijab) and an acceptance (qabul). The woman declares that she is entering into a relationship of marriage with the man, and he accepts her as his wife.
The schools differ as to the exact words that may be employed in the woman's declaration. The Shafi'is and Hanbalis hold that a formula derived from the words 'I have married you' (ankahtu-ka) or 'I have espoused you' (zawwajtu-ka) are valid. The Malikis maintain that if the amount of the dower to be paid to the wife (see IlA below) has been specified, the woman may also say 'I give myself to you' (wahabtu-ka).1 The Shi'is do not include the verb 'to give', but they add the formula, 'I surrender myself to your pleasure' (matta'tu-ka).2 The Hanafi school is the freest in respect of the formula, allowing any number of expressions to be employed, even certain indirect formulas.
All schools agree that the man may show his acceptance by employing any word which denotes his satisfaction with the contract.
The Hanbali, Maliki, and Shi'i schools hold that the verbs for both declaration and acceptance must be in the perfect tense. According to the Hanafis, the present tense may be employed as long as what is meant is directed toward the future, i.e., does not denote the seeking of a promise of marriage;3 according to the Shafi'is, the present tense may be used if it excludes the possibility of being interpreted as a promise of marriage, e.g., by adding the word 'right now' (al-an).4 All agree that both declaration and acceptance must be uttered at a single session. It is not necessary for the declaration to precede the acceptance, except according to the Hanbalis.5 A person who knows Arabic must pronounce the formula in that language, but those who do not know Arabic may employ equivalent terms in their own language. A mute may employ sign language.
1. 'Abd al-Rahman al-Jaziri, al-Fiqh 'ala al-madhahib al-arba'a (hereafter cited as Fiqh), Cairo, 1969, IV, 24.
2. Al-Shahid al Thani (Zayn al-Din Muhammad ibn 'Ali al-Jab'i al-'Amili [d. 965/1558]), al-Rawdat al-bahiyya fi sharh al-lum'at al-Dimashqiyya (hereafter cited as Sharh al-luma), Beirut, 1967, v, 108.
3. Fiqh, IV, 13.
4. Ibid., 18.
5. Ibid., 25.
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