The Second Pillar of Marriage Contract
- :Sachiko Murata
Adopted from the Book : "Temporary Marriage in Islamic Laws" by : "Sachiko Marata"
B. The Persons (mahall)
The man and woman must be free of all shar'i hindrances to their marriage, as explained below. The identity of the spouses must be clearly specified. Thus, for example, if the guardian (below, C) should say: 'I give one of my two daughters to you in marriage', and the man should accept, the contract is invalid.
A woman may not marry a husband who is not 'equal' (kafa) to her. According to the Shi'is, this means only that the woman's husband must be a Muslim.1 The Sunni schools add equality in terms of various social considerations. Not only must the man be a Muslim, he must also have a social standing at least equal to the woman's. In other words, she may not marry anyone below her rank in society, though a man may do so. 'Equality' here is defined in terms of a number of factors which differ slightly among the four schools. The Hanafis mention Islam, lineage, profession, liberty (as opposed to slavery), piety, and property. The Shafi'is list lineage, religion, and profession, differing only slightly in the words employed from the Hanbalis. The Malikis mention piety and freedom from physical defects detrimental to marriage.2
A man and woman may be forbidden from marrying for several reasons:
1. Blood relationship (qaraba). A man may not marry the following women: (a) His mother or any of his grandmothers; (b) His daughter or granddaughters, no matter how far removed; (c) His sister; (d) His nieces, his aunts, or his great aunts.
2. Relationship by marriage (musahara). A man may not marry: (a) The mother or grandmothers of his wife; (b) The daughter, granddaughter, etc., of a wife with whom his marriage has been consummated; (c) The ex-wife of his son, grandson, etc.; (d) The ex-wife ofhis father, grandfather, etc.
3. There are certain women whom a man may marry singly, but not at the same time. These are (a) two sisters, and (b) a woman and the sister of her mother or father. In the second case, the Shi'is take exception to the four Sunni schools by saying that if the aunt agrees to share her husband with her niece, the contract is valid.3
Except for the daughter of his wife, in the three other instances of relationship by marriage, the women become forbidden to the man as soon as the marriage contract is concluded; consummation of the marriage is not necessary. But if a man wants to marry the daughter of a wife with whom he has not consummated his marriage, he can do so if he first divorces the wife. Once the marriage has been consummated, the wife's daughter is forbidden to him forever, whether or not the marriage contract is valid. If a man should marry both a woman and her daughter or two sisters in a single contract, both marriages are invalid. In both cases, should he first marry one and then the other, the first contract is valid and the second void.
The schools of law differ as to what exactly establishes the unmarriageability of a woman as the result of a relationship by marriage. For the Hanafis, unmarriageability is established by a valid marriage contract, sexual intercourse in whatever context (i.e. whether as the result of a valid contract, an invalid one, or fornication), love play, or looking at the private parts of a person of the opposite sex.4 The Shafi'is hold that unmarriageability is established only by a valid marriage contract or by the consummation of an invalid marriage contract. They do not consider any other factors, such as fornication or love play, as sufficient to establish unmarriageability.5 The Maliki position is the same as the Hanafi, except in the case of fornication; like the Shafi'is, the Malikis hold that no honour or respect can be paid to fornication.6 In the Hanbali view an invalid contract, like a valid one, results in unmarriageability, as does sexual intercourse.7 The Shi'is hold the same position as the Shafi'is except that the opinion of the 'ulama's split on fornication; one group says that it results in unmarriageability, another group says it does not.8
4. Foster relationships because of suckling (rida'). In establishing unmarriageability, a foster mother who suckles an infant is considered exactly as the infant's real mother, provided that all the shar'i conditions for this relationship are fulfilled, as detailed below. In other words, the children of the foster mother are considered as the child's siblings, and all of her other relatives are considered exactly as if they were truly the child's relatives by blood or marriage.
The Shi'is and Hanbalis hold that the mother's milk must have been the result of pregnancy from marriage.9 The Shafi'is hold that the mere physical possibility of pregnancy is sufficient. Thus, for example, if a married nine year old girl should have begun menstruation and her breasts produce milk, and if she should provide milk for a foster child, the shar'i foster relationship is established.10 The Malikis and the Hanafis maintain that it is only necessary for the woman to have given milk for the relationship to be established; it makes no difference if she should also be an unmarried virgin, or if she is too young to marry or too old to bear children.11According to the Hanbali and Shafi'i schools, if the foster mother should have become pregnant through fornication, the relationship of unmarriageability is established only with the mother's blood relatives, not with the father's, since he has no legitimate relationship with the mother. The Hanafi and Maliki schools say that unmarriageability is established also with the father's relatives.12 The Shi'is hold that in the case of fornication no relationship of unmarriageability is established whatsoever, since fornication deserves no respect.13 According to four of the schools, the foster child must have been suckled before it reaches two years of age for unmarriageability to be established. The Malikis set the age at two years and two months.14 According to all the schools, the milk must have entered the infant's stomach. The Shi'is hold that the infant must have suckled at the breast of the foster mother. Hence, if the milk is placed in a container and fed to the child, the foster relationship is not established.15 The Sunni schools hold that the means of drinking the milk is irrelevant. The schools differ as to how many times milk must be drunk. The Shafi'i and Hanbali schools hold that the infant must suckle at least five times.16 The Shi'is hold that it must suckle over a period of twenty-four hours or at least fifteen times, and each time it must drink a quantity of milk that would customarily be called a 'feeding'.17 According to the Hanafis and Malikis, a single act of suckling, even if the infant drinks only one drop of milk, is sufficient to establish the relationship.18
The Shafi'is and the Shi'is add that the foster mother must be alive when the milk is drunk.19 The other schools hold that even if for some reason an infant should suckle at the breast of a corpse, the foster relationship will be established.20
5. Religious difference. A woman may not marry a non-Muslim. In Sunnism, a man may marry a woman who is one of the 'People of the Book' (ahl al-kitab, i.e., Christians, Jews, and other religions with revealed scriptures). But in Shi'ism a man may not contract a permanent marriage with a non-Muslim, though he may marry one of the People of the Book temporarily.21 If either of the spouses should become an apostate, the marriage is automatically annulled.
6. Maximum number of wives. A man may not have more than four wives at one time. If a man should divorce one of his wives, he cannot remarry until her waiting period (below, IV) is completed, unless the divorce should be of the irrevocable type (ba'in, see below under III).
7. Divorce. If a man should have divorced his wife irrevocably, she is forbidden to him forever, unless she should marry another man and obtain a divorce from him. Once the woman's waiting period has expired, she may remarry her first husband. The woman's husband is known as the muhallill, 'he who makes [marriage to her first husband] lawful'. The marriage with the muJ:tallil must be consummated.22
8. Sworn allegation. Having annulled his marriage through 'sworn allegation' (li'an, below, VII), a man may never remarry the woman.
1. Sharh al-lum'a. v. 234.
2. Fiqh, IV, 54-60.
3. Sharh al-lum'a, V, 181; Muhammad 'Ali al-Tabataba'i (d. 1231/1816), Riyad al-masail (also known as al-Sharh al-Kabir), Tabriz, 1308/1890-9 1,II, 94.
4. Fiqh, IV, 63.
8. Sharh al-lum'a, v, 176-82; Riyad, II,96-97.
9. Fiqh, IV, 268; Riyad, II, 86.
10. Fiqh, IV, 256.
13. Riyad, II, 86.
14. Fiqh, IV, 253.
15. Riyad, II, 86.
17. Riyad, II, 87.
18. Fiqh,IV, 257.
19. Ibid., 256; Sharh al-lum'a, II, 63.
20. Fiqh, IV, 254,255, and 261.
21. Sharh al-lum'a, v, 156; Riyad, II, 105-06.
22. Fiqh, IV, 77-84; Riyad, II, 181; Sharh al-lum'a, VI, 46.
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