REVISITING THE VALIDITY OF
MUSLIM MARRIAGE CONTRACT 2008
vis-à-vis TRADITIONAL ISLAMIC LAW:
Sadia Behzad
Introduction:
In Islam, marriage ( nikah or zawaj ) is a legal means by which men and women may provide love, companionship and security to one another. The Holy Quran says:
And among His Signs is this, that He created for you mates from among
yourselves, that you may dwell in tranquility with them, and He has put,
love and mercy between your (hearts). Verily, in that there are Signs for those
who reflect.[1]
Moreover, contrary to the Christian concept of celibacy, Islam condemns monasticism and through the words of the Holy Prophet enjoins:
O you young men, those of you who can support a wife should marry, for it
(marriage) controls the gaze and preserves one from immorality. And whoever
cannot (marry) should fast, for it is a means of reducing the sexual desire. [2]
In order that marriage, not celibacy is instituted, Islam lays out certain regulations by means of which both the spouses may find love, peace and security in one another both emotionally and sexually. These elements then later serve an even greater purpose: the worship of Allah. Secondly, marriage is a means of legitimate procreation and in order to create a healthy and moral atmosphere for the upbringing of the children born out of the wedlock, Islam sets out clear injunctions as to the rights and obligations of the parents and the offspring. Furthermore, Islam upholds the concept of family by prescribing certain roles for both men and women such that both function in accordance to their biological traits. This principled family-hood would eventually engender an Islamic society conducive to leading lives according to the Shariah and with a purpose of attaining Taqwa. In other words,
there is an intrinsic cause and effect relationship between the family and society.[3]
Status of Marriage in Islamic Law:
Before remarking on the status marriage enjoys in Islam as an act of worship, we must first consider the varying statuses conferred to the acts of worship depending on the degree of requirement as governed by definitive or qati’i and speculative or zanni provisions of Islam. For instance, an act of worship may be fard[4], wajib[5], mubah [6]or mandub[7] on the basis of its details and nature having been dictated by the Shariah. Nonetheless, there are various opinions regarding the status of marriage in Islam. Although marriage in its essence may be only a recommended act, it is obligatory or wajib, in some cases such as if a man is unable to control his passion and fears to commit fornication if he does not marry; while it is prohibited or haram in others, such as instances of somebody who cannot maintain his wife and needs to resort to unlawful means to provide her with nafaqah; or makruh or not desirable in the case of an impotent man.
Critique of the Muslim Marriage Contract
I.Role of Shariah in Islam vis-à-vis its role as per the contract:
To begin with, the document’s claim to reflect an effort to lay down the terms and conditions to a nuptial contract as established by the Shariah falls flat when it attempts to make validity of such a contract subservient to the decree of the State, as is obvious even from a sweeping perusal of the afore-mentioned. According to the contract,
For a Muslim marriage to be valid under the laws of England Wales
marriage must be solemnised either at a mosque registered for the solemnisation
of marriages or a civil wedding at a registry office must precede the nikah
(Muslim marriage).
In Classical traditional Islamic Law, Shariah governs all the aspects of human life-social, economic, political, etc and is over and above any temporal and spatial differences, which have a potential to be used as excuses in this day and age to by-pass the jurisprudential rulings already put forth by the Shariah. In short, Shariah as an integral part of the Divine Decree can and must be implemented in any time and place. Therefore attempting to limit or undermine the role and position of Shariah by seeking validity of both the institution of marriage and its nullification from non-Muslim governmental body is pretty much problematic.
II.The Condition of a Wali:
The jurists from the four schools of thought disagree on the stipulation of guardianship for the validity of a nikah. Contrary to the Hanafi position that a guardian is not necessary for a marital contract to be validated, the other three schools namely the Shafi’i, Maliki and Hanbali assert that the presence of a guardian is one of the conditions for a valid nikah.[8] However, a guardian may annul the marital contract in Hanafi madhhab if the issue of suitablity or kufu’ arises.[9] Kufu’, as defined by a prominent Hanafi scholar, Burhan al-din al-Farghani al-Marghinani, literally means equality and in the legal diction, it connotes the equality of a man and a woman in terms of several aspects such as tribe or family, freedom, character, fortune, religion and profession.[10] Al Kashani Al-Hanafi, one of the great scholars of Hanafi madhhab explains the role of a guardian in the rescission of the nikah in case of any discrepancy in kufu’, as follows:
The marriage in which suitability is a condition of continuity is the one in which
the woman gets married by herself without the consent of the awliya
(guardians)…They have the right to object because suitability is a right of the
awliya as they benefit from it. These matters which are considered as suitability in
the Hanafi madhhab are the broadest amongst the four madhhabs. This is because
if Imam Abu Hanifa gave the woman the freedom in marriage he was cautious on
the side of the wali by broadening the meaning of suitability. He was also strict in
stipulating suitability so that woman does not cause harm to the wali through the
According to this stipulation, a guardian can exercise his right and rescind the marriage contract, for example in case of a woman contracting herself to a nikah on an inadequate dower, on the pretext that this might affect the dower of future brides from among the family.
Furthermore, although all schools of thought agree that a guardian can decide about a minor virgin and that her consent is not necessary and a baligh non-virgin may not be compelled, there is an ikhtilaf whether the consent should be sought in case of a baligh virgin, and a non-baligh deflowered woman.[12] The disagreement lies on the underlying cause as to what causes forced consent: virginity or minority. [13]At this juncture of the discourse, it needs to be iterated that adulthood in Islamic law does not mean attaining to puberty nor does it by any means refer to any particular age signifying majority. On the contrary, a Muslim girl reaches adulthood when she is deflowered. This is in stark contrast to the Western notion of adulthood which is specified by an age, 18 years, say. Hence, the statement given in the contract that
parental or guardian’s legal role finishes when the children reach adulthood
may create problems because the criterion by which one determines the children’s adulthood has nowhere been mentioned in the document and hence, there is a possibility that it is taken as a relative term. As far as the role of guardian in Shariah in case of a virgin or a deflowered woman is concerned, in the Hanafi madhhab, while a baligh deflowered woman can enter into a marriage contract on her own and a baligh virgin cannot be married against her will, it is not required of a minor virgin to grant permission by virtue of her minority, because in this madhhab, minority and not virginity causes forced consent.[14] On the other hand, Imam Shafi’i considered virginity to allow forced consent and asserted that a baligh virgin is compelled but not the deflowered minor girl.[15] Imam Malik, considered both as causes and made forced consent obligatory in scenarios concerning baligh virgin and a non-baligh deflowered woman.[16] In short, the scholars who do not require a guardian as a necessary condition for the validity of marriage , do not allow forced consent. The converse holds good for those who stipulate guardianship as a condition. However, this should be noted that the loss of virginity prevents compulsion in both Hanafi and Shafi’i madhahib.
The Hanafi ruling on guardianship is governed by the following verse of the Holy Quran:
Then there is no sin for you in aught that they (widowed women) may do
with themselves in decency.[17]
This may also be inspired by the analogous relation between a sales contract and marriage upheld by the Hanafis in a sense that since marriage is similar to a contract and a previously married woman, or any woman for that matter, has an authority over her property, she should be given the right and agency to give herself in marriage too. This and the latter ruling also tend to seek their textual evidences in an agreed upon Hadith of the Holy Prophet:
Narrated Ibn Abbas: The Prophet said, “A woman who has been previously
married has more right over her person than her guardian, and a virgin must be
consulted, and her consent is silence.”[18]
On the other hand, those who insist on the condition of guardianship use the following verse from the Holy Quran :
When they reach their term, place not difficulties in the way of their marrying
their husbands. [19]
These scholars argue that had a guardian not have any right over the woman, he would not have been prohibited from disallowing the marriage to happen.[20]
They also use the following tradition narrated by al-Zuhri from Urwa from Aisha that she said,
Allah’s Messenger said, “If any woman marries without the consent of her
guardian, her marriage is invalid. If there is cohabitation, she is entitled to the
dowry, due to the sexual intercourse made lawful with her. If there is a dispute
(between her guardians), the ruler is the guardian of one who has no guardian”[21]
to conclude the same. In short, the Classical Islamic jurists have thus defined and specified the roles and responsibilities of a guardian , while nowhere absolutely outlawing his existence as a condition for a marital contract.
III.Witnesses:
Although there exists a difference of opinions on the qualifications of a witness, there is a general agreement among the scholars on the necessity of the condition of the presence of two witnesses for establishing the validity of a Muslim nuptial contract. The source for this is a tradition related from Ibn Abbas:
There is no marriage without a guardian and two adl witnesses.[22]
According to Abu Hanifa, the contract may be concluded by the testimony of fasiqs,
while Imam Shafi’i requires adl as a condition because of his opinion that
Imam Malik, on the other hand, asserts that witnessing over a marriage does not include proclamation if the witnesses have been asked to keep it secret.[25] Nevertheless, the Hanbali ruling on this issue coincides with that of Imam Shafi’i. [26] Thus, bereft of any allusion to the notion of goodness of one’s person in Islamic law the idea of “witnesses of good character” seems to be absurd in a sense that it again fails to describe the legal standards for a relative term such as good.
Although Imam Abu Hanifa stipulated that two male infidels or dhimmis may witness the marriage of an infidel or dhimmi woman,[27] this cannot be generalized to be made applicable in cases when both the bride and the groom are Muslims.
Al Kashani Al-Hanafi said:
The marriage of a Muslim male and female is not valid with the witness of
disbelievers because the disbeliever does not have any authority over the
Muslim.[28]
This seeks evidence from the words of Allah Most High:
And never will Allah grant to the disbelievers a way over the believers.[29]
Also, the Hanafis allow the attestation of one male and two female witnesses as opposed to the stipulation of male witnesses only in other schools. [30]
Thus, it is clear that the clause in the contract that
According to Islamic law, a witness should be sane, adult and reliable. This
requirement is gender/faith neutral
is flawed altogether because a nikah will be outright declared to be invalid in Islamic law if it has been witnessed over by two Muslim females, let alone by their non-Muslim counterparts, contrary to what is being suggested in the document in question.
IV.Right of Divorce:
In Classical Islamic law, Talaq or divorce is always initiated by the husband unless he does tafwid[31] of the talaq, that is, he delegates his right to divorce to his wife. In so doing, a husband suspends the divorce until his wife chooses to take its course. Sources used as evidences to justify the afore-said are as follows:
a) Allah Most High Says:
O Prophet! When you divorce women, divorce them at their Iddah.[32]
b) The Holy Prophet’s statement to a man who complained about his wife’s ill-conduct:
Divorce her.[33]
c) The Holy Prophet’s saying:
Any woman who asks her husband to divorce her for something that is not truly a problem, the fragrance of the Paradise will be forbidden for her.[34]
Also, the tafwid of the talaq is only a recommended act and is put into effect only in dire conditions when the husband does not comply with certain conditions already written down in the marital contract, later during the married life. One should bear in mind that however an ikhtilaf persists on the status of validity of certain conditions to be put down in a nikah nama, these conditions should be valid in the first place, and even if a certain condition is invalid, for instance, one in which a woman makes unlawful for the husband a second marriage which has already been rendered as lawful in Islam, the validity of the husband’s second marital contract with another wife, if he chooses to remarry, will not be affected and the first wife will have the option to choose her course. An important and a legal instance of talaq-al-tafwid is in order. Muslim Family Laws Ordinance promulgated in 1961 in West Pakistan and East Pakistan ( now Bangladesh
This again reinforces the point as stated by Lucy Carroll:
That, unless the contract specifies otherwise, it is not incumbent upon
the wife to exercise her right of talaq-e-tafwid immediately the contingency
entitling her to do so arises; she may exercise the right at her option at any time
after the event giving rise to her right has occurred.[36]
Thus, talaq-al-tafwid in case of this contract is an invalid condition altogether because it automatically delegates the right of divorce to the wife as soon as the partners sign it, without taking into account the discretion of a husband, and wife for that matter. The contract does not also take into consideration the Classical Islamic ruling that a husband may also pronounce his delegation by specifying a certain number of repudiations. [37]
Furthermore, the right to pronounce talaq is solely man’s and the Islamic state does by no means question his intention or validity of the divorce thus declared. Islam does give the right of khul’ to women and in this case, with the exception of the Hanafi madhhab, the rest of the three schools allow a woman to go to the qadi and he would then pronounce her divorced on the behalf of the husband. The Hanafi qadi could only imprison the husband and prescribe punishment for him unless he pronounces talaq. [38]
Contrary to all of this, a husband has been deprived of his right to divorce his wife under the clause of the contract under consideration:
Neither party will end this contract unilaterally without recourse to arbitration/
reconciliation by an independent Muslim professional body
and in case the arbitration fails to resolve the dispute
the marriage must be dissolved through British court first.
Further more,
the process must take place through a reputable UK-based Shariah/body/council
in a situation where the marriage did not take place at a mosque registered for the
solemnisation of civil marriages.
V.Obligations of the spouses:
a) Sexual Abuse
Islam has laid down specific injunctions related to the married life of a bride and a groom. An example could be a Hadith related from Abu Huraira narrated by Bukhari.[39] Certain manners about the sexual life of the partners have also been put down to inculcate love and mercy among them and avoid any inconvenience to either or both. [40]
There is a legal axiom in Islamic law which is inspired by a tradition of the Prophet Muhammad that reads:
There is not to be causing of harm, nor reciprocation of harm.[41]
Thus, causing harm to anyone has been forbidden in Islam. Moreover, Allah Most High Says:
…And live with them honourably (ma’ruf). If you dislike them (i.e. women),
it may be that you dislike a thing and Allah brings through it a great deal of
good.[42]
So if a man forces himself upon his wife, he may cause severe sexual harm (this may damage a woman’s sexual organs) and emotional harm. In this regard, a Hadith which is very frequently quoted and often misread needs allusion. It reads:
When the man (i.e. the husband) calls his wife for a need of his, then she
should go, even if she is at the stove.[43]
This Hadith does by no means imply that the woman must go, nor allows the husband to harm her, should she refuse his call. Also, it should be noted that satisfying a husband’s sexual needs is one of the duties of a Muslim wife. However, this does not make his forcing her into sex lawful.
Moreover, in Islamic law, rape which generally refers to any act of sexual intercourse that is forced upon a person, is only an act of forced zina and not a separate category of sexual crime. The term zina is used in traditional Islamic law to refer not only to
sexual intercourse but also to occurrence of immoral conduct, even if it falls
short of sexual intercourse, and such conduct has also been punished in the Islamic tradition.[44]
The Quran and the Sunnah of the Prophet do not expressly refer to a different punishment in case of rape, when they decree provisions for the crime of zina. In addition, traditional Islamic legal jurists have mentioned the crime of rape or zina-bil-jabr in either discussing the context of legal responsibility or taklif, or discussing duress, or ikrah. [45] They assumed that a rape victim is not to be punished because she was under duress and thus, lacked legal responsibility.[46] Thus, it follows that an individual can only be held responsible and hence, punished for his crime in the absence of duress and compulsion. Also, since a raped woman was coerced into committing this unlawful act, she was not obliged by the traditional Islamic court to prove any signs of resistance. [47] This is why, the traditional Islamic jurists have been reluctant in categorizing rape as a separate criminal offence. Moreover, the jurists agreed that the rapist should be punished according to his marital status, and should be castigated not only for the crime of having committed unlawful sexual intercourse but also for the violence which he perpetrated on the victim. For example, if he was married, he should be given tazir punishment before being killed.[48] All of this is indicative of the sense of security enjoyed by a Muslim woman, should she be made a victim of rape.
Now, since this contract will take effect in England South Asia . A survey of the legal definitions of sexual abuse indicates disparity in the implication of the term in South Asian countries In some cases such as Bangladesh, a proper definition in the legal statutes for the term under consideration does not even exist, and countries where it has been accounted for, such as, Pakistan, Sri Lanka and India, sexual abuse has been mainly restricted to domestic violence, with general silence having been observed on marital rape.[49]
Even in the British Law marital law was given an exemption until 1991 when the House of Lords abolished immunity to the perpetrator of the crime in R.v R. Later in 1994, the definition of rape was expanded to include non-consensual penile-anal intercourse.[50] At this point, one is reminded of a Hadith narrated by Ibn Abbas:
Allah’s Messenger said, “Allah will not look at a man who has intercourse with a
woman through the anus.”[51]
This clearly indicates that anal sex had already been condemned in Islam 1400 years ago, while it has been very recently added to the list of sexual offences in the British Law.
Moreover, although the British Criminal Law Revision Committee revisited and reviewed the reforms on sexual offences in a way that although it revised the legal definition of rape, it failed to focus mainly as to how this meaning could be interpreted and enforced by the criminal justice system.[52]
Despite these changes the definition of rape can still be characterised as
incoherent and defective for 'its failure to acknowledge the gravity of other acts
of sexual violence and abuse which do not legally constitute rape'.[53]
With this backdrop of the British law in mind, one may conclude that the document fails to encompass the reading and interpretation of the concept of sexual abuse in Islam, let alone in British law. Also, one cannot always expect justice from British laws on the issue of sexual abuse, because of their deficiency in producing an absolute definition for it and that, it is highly likely that the British law exclude a certain type of behavior having the potential to be characterized as rape, from its definition of rape. Contrary to this, Islam condemns all forms of detriment to men and women alike, by repudiating harm and its reciprocation.
Moreover, stipulating that a husband should not transmit diseases sexually seems to be an implausible clause altogether because it fails to consider the scenario in which the husband does not know anything about the disease. Hence, this issue should have been left to the discretion of the spouses themselves.
b) Being absent from home for 60 days
Moreover, the stipulation that
the husband undertakes not to desert/be absent from the marital home for more than 60 days unless by mutual agreement
is a clear deviation from the Word of Allah Most High:
Those who take an oath not to have sexual relation with their wives must not
wait more than four months, if they return (i.e., change their stance during this
period), verily, Allah is Oft-Forgiving, Most Merciful.[54]
c) Disallowing a woman to interfere with the husband’s property
The contract states that
The wife undertakes not to misuse/interfere with the husband’s property
and makes obligatory upon them
maintaining their individual property rights but contributing to the welfare of
the family according to their capacity.
It is true that in Islamic law, a woman retains her rights to own property etc
and a husband is not allowed to partake of it, unless by mutual agreement; however, the wife can use husband’s wealth and property as much of it as suffices her, as referenced by a Prophetic tradition which instructs Hind to
Take from his (husband’s) wealth what is reasonable and enough for you and
your sons.[55]
Moreover, it is one of the injunctions enforced upon a Muslim husband that he provides maintenance and clothing to his wife as the Holy Quran states:
The duty of feeding and clothing nursing mothers in a seemly manner is upon
the father of the child, and no one should be charged beyond his capacity.[56]
d) Wife’s contribution to the economic welfare of the family
When discussing the mutual rights and obligations of the spouses, the document makes mandatory upon both the husband and the wife
working collectively towards the socio-economic welfare and stability of the
family
when it could have been left open to the discretion of both the partners. This condition does not seem to be invalid but it may create problems, for instance, if either of the partners become disabled at some point in their married life and can no longer add to the welfare of the family. However, it is not the wife’s duty to make any financial contributions to the family in the first place. Allah Most High Says in the Holy Quran:
Men are protectors and maintainers of women, because Allah has made one
One of them to excel the other, and because they spend (to support them) from
their means….[57]
VI.Special conditions:
a) Polygamy:
Islam allows man to take up to 4 wives because of the Words of Allah Most High:
If you fear that you shall not be able to deal justly with the orphan, marry the
women of your choice, two, three, or four. But if you fear that you shall not be
able to deal with them, then only one. [58]
Polygamy up to four wives is lawful in Islam provided that the husband has enough financial capacity to cater to the needs of all of his wives, and he treats them all equally and justly in fulfilling their conjugal and other rights. Also, from the Ahadith of the Prophet which read respectively:
it is not allowed to marry a woman with the condition of the divorce of
another wife[59]
and
the conditions that have the most right to be fulfilled are those by which
you make lawful the private parts (for sexual intercourse)[60]
it follows that the ‘special’ condition that
the husband is not to enter into formal or informal nikah (Muslim marriage)
contract in the UK
laws of England Wales
is invalid.
b) Separate housing for the wife:
The condition that a husband needs to get a separate housing for the wife may be detrimental to the husband if he is poor.
VII.Mahr:
The document states that:
b. Any customary gifts given by the bride’s family (dowry/jehez) at the time of
marriage remains the property of the bride and should be written down;
c. Any customary gifts given by the bridegroom and/or his family to the bride at
the time of marriage and which are not expressly mentioned as part of the Mahr
remains the property of the bride and should be written down.
The word dower or dowry has been used in Islamic law to refer to mahr or sadaq[61]. Thus, the very notion of dowry to be given by the bride’s family has no place in Islam. According to the Islamic Shariah council, the gifts given by anybody at the time of marriage do not count towards mahr; rather they are regarded as gifts for the couple as a whole.[62]
Conclusion:
The Muslim Marriage contract is conclusively invalid because it makes certain conditions lawful when they have already been specified otherwise, and vice versa, and has a potential for creating serious problems, by meddling too much in the personal affairs of the husband and the wife. Transmission of sexual diseases and the obligation of a husband to procure independent accommodation are the cases in point.
And Allah Knows Best!
WORKS CITED:
· Abu Layth. "Is Marital Rape Permitted in Islam." Web log post. Seeking 'Ilm. 28 May 2007. 01 Feb. 2010 <http://www.seekingilm.com/ilm/archives/61>.
· Al-Asqalani, Ibn Hajar. Bulugh Al-Maram,
· Al-Jaza'iry, Abu Bakr Jabir. Minhaj Al-Muslim. 1st ed. Vol. 2.
· Al-Marghinani, Burhan al-din al-Farghani. Al-Hidaya: The Guidance. Vol. 1.
· Carroll, Lucy. "Talaq-i-Tafwid and Stipulations in a Muslim Marriage Contract: Important Means of Protecting the Position of the South Asian Muslim Wife." Modern Asian Studies 16 (1982): 277-309. JSTOR. 31 Jan. 2010 <http://www.jstor.org/stable/312203>.
· Cheema, Moeen H., and Abdul-Rahman Mustafa. "From the Hudood Ordinances to the Protection of Women Act: Islamic Critiques of the Hudood Laws of Pakistan." UCLA.J.ISLAMIC AND NEAR E.L. (2009): 2-36.
· Doi, Abdur Rehman I.
· "ISC Stand on the Marriage Contract." Islamic Shariah Council. 31 Jan. 2010 <http://www.islamic-sharia.org/>.
· Mustafa, Abdul-Rahman. "Muslim Personal Law." LUMS, Lahore. 13 Oct. 2009.
· Rumney, Philip N.S. "The Review of Sex Offences and Rape Law Reform: Another False Dawn?" The Modern Law Review 64 (2001): 890-910. JSTOR. 31 Jan. 2010 <http://www.jstor.org/stable/1097198>.
· Rushd, Ibn. The Distinguished Jurist's Primer Volume I. Grand Rapids: Garnet, Ltd., 2000.
· Sen, Rukmini. "Myriad Legal Meanings Of Domestic Violence." Countercurrents.org. 20 Dec. 2009. 31 Jan. 2010 <Myriad Legal Meanings Of Domestic Violence>.
· The Holy Quran
[1] Qur’an, 30:21
[2] Al-Asqalani, Ibn Hajar. Bulugh Al-Maram, Hadith # 824
[3] Doi, Abdur Rehman I.
[4] It is an act of worship whose obligation is established by definitive or qati’i sources of Islamic Law
Failure in its performance results in punishment
[5] It is an act of worship whose obligation is established by speculative or zanni sources of Islamic Law.
Failure in its performance results in punishment
[6] It mostly includes the Sunnah of the Prophet Sallallahu Alayhi Wasallam.
[7] It is a recommended act of worship which, if performed, earns rewards. However, no punishment is due
on non-performance.
[8] Rushd, Ibn. The Distinguished Jurist's Primer Volume I. Grand Rapids
[9] Al-Marghinani, Burhan al-din al-Farghani. Al-Hidaya: The Guidance. Vol. 1., p.41
[10] Al-Marghinani, Burhan al-din al-Farghani. Al-Hidaya: The Guidance. Vol. 1., p.40
[11] "ISC Stand on the Marriage Contract." Islamic Shariah Council. 31 Jan. 2010 <http://www.islamic-
sharia.org/>.
[12] Rushd, Ibn. The Distinguished Jurist's Primer Volume I. Grand Rapids
[13] Ibid, p.5
[14] Ibid, p.6
[15] Ibid, p.6
[16] Ibid, p.6
[17] Qur’an, 2:234
[18] Al-Asqalani, Ibn Hajar. Bulugh Al-Maram, Hadith # 837
[19] Qur’an, 2:232
[20] Rushd, Ibn. The Distinguished Jurist's Primer Volume I. Grand Rapids
[21] Al-Asqalani, Ibn Hajar. Bulugh Al-Maram, Hadith # 836
[22] Al-Jaza'iry, Abu Bakr Jabir. Minhaj Al-Muslim. 1st ed. Vol. 2., p.323
[23] Rushd, Ibn. The Distinguished Jurist's Primer Volume I. Grand Rapids
[24] Ibid, p.20
[25] Ibid, p.20
[26] Al-Jaza'iry, Abu Bakr Jabir. Minhaj Al-Muslim. 1st ed. Vol. 2., p.323
[27] Al-Marghinani, Burhan al-din al-Farghani. Al-Hidaya: The Guidance. Vol. 1., p.27
[28] "ISC Stand on the Marriage Contract." Islamic Shariah Council. 31 Jan. 2010 <http://www.islamic-
sharia.org/>.
[29] Qur’an, 4:141
[30] Al-Marghinani, Burhan al-din al-Farghani. Al-Hidaya: The Guidance. Vol. 1., p.26
[31] Tafwid is an Arabic word and it means "delegation".
[32] Qur’an, 65:1
[33] Al-Jaza'iry, Abu Bakr Jabir. Minhaj Al-Muslim. 1st ed. Vol. 2., p.355
[34] Al-Jaza'iry, Abu Bakr Jabir. Minhaj Al-Muslim. 1st ed. Vol. 2., p.356
[35] Carroll, Lucy. "Talaq-i-Tafwid and Stipulations in a Muslim Marriage Contract: Important Means of Protecting the Position of the South Asian Muslim Wife." Modern Asian Studies 16 (1982): 277-309. JSTOR. 31 Jan. 2010 <http://www.jstor.org/stable/312203>.,p. 308
[36] Ibid., p. 284
[37] Al-Marghinani, Burhan al-din al-Farghani. Al-Hidaya: The Guidance. Vol. 1., p.88
[38] Mustafa, Abdul-Rahman. "Muslim Personal Law." LUMS, Lahore. 13 Oct. 2009.
[39] The Prophet of Allah said, “He who believes in Allah and the Last Day should not harm his neighbor; and take my advice regarding good treatment of women, for they were created from a rib. And indeed the most crooked part of the rib is its upper part. If you attempt to straighten it, you will break it, and if you leave it alone, it will remain crooked. So, take my advice regarding good treatment of women.” Al-Asqalani, Ibn Hajar. Bulugh Al-Maram, Hadith # 869
[40] These manners include making foreplay with the wife and frolicking with her in a way that stirs the
desire for sexual intercourse. Al-Jaza'iry, Abu Bakr Jabir. Minhaj Al-Muslim. 1st ed. Vol. 2., p.342
[41] Abu Layth. "Is Marital Rape Permitted in Islam." Web log post. Seeking 'Ilm. 28 May 2007. 01 Feb.
2010 <http://www.seekingilm.com/ilm/archives/61>.
[42] Qur’an,
[43] Abu Layth. "Is Marital Rape Permitted in Islam." Web log post. Seeking 'Ilm. 28 May 2007. 01 Feb.
2010 <http://www.seekingilm.com/ilm/archives/61>.
[44] Cheema, Moeen H., and Abdul-Rahman Mustafa. "From the Hudood Ordinances to the Protection of Women Act: Islamic Critiques of the Hudood Laws of Pakistan." UCLA.J.ISLAMIC AND NEAR E.L. (2009): 2-36., p. 18
[45] Ibid., p.20
[46] Ibid., p.20
[47] Ibid.,p.22
[48] Ibid., p. 21
[49] Sen, Rukmini. "Myriad Legal Meanings Of Domestic Violence." Countercurrents.org. 20 Dec. 2009. 31 Jan. 2010 <Myriad Legal Meanings Of Domestic Violence>.
[50] Rumney, Philip N.S. "The Review of Sex Offences and Rape Law Reform: Another False Dawn?" The Modern Law Review 64 (2001): 890-910. JSTOR. 31 Jan. 2010 <http://www.jstor.org/stable/1097198>.,p. 891
[51] Al-Asqalani, Ibn Hajar. Bulugh Al-Maram, Hadith # 868
[52] Ibid, p.890
[53] Ibid., p.891
[54] Qur’an, 2:226
[55] Al-Asqalani, Ibn Hajar. Bulugh Al-Maram, Hadith # 975
[56] Qur’an 2:233
[57] Quran,
[58] Qur’an, 4:3
[59] Al-Jaza'iry, Abu Bakr Jabir. Minhaj Al-Muslim. 1st ed. Vol. 2., p.333
[60] Al-Jaza'iry, Abu Bakr Jabir. Minhaj Al-Muslim. 1st ed. Vol. 2., p.332
[61] Rushd, Ibn. The Distinguished Jurist's Primer Volume I. Grand Rapids
[62] "ISC Stand on the Marriage Contract." Islamic Shariah Council. 31 Jan. 2010 <http://www.islamic-
sharia.org/>.
It was extremely insightful reading the article. I haven't read all of it but have made a point to do so. Also, the dialogue too!
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