3.6.2 Legal Disabilities

A marriage for a fixed period was recognized before Islam. It went under the name of mut‘ah, meaning profiting by or enjoying a thing. Besides the temporary marriage, four kinds of union of man and woman were recognized by the pre-Islamic Arabs (Bu. 67:37). The first of these was the permanent marriage tie which, in a modified form, was recognized by Islam. The second was known as the istibdza’. The following explanation of this word is given in Bukhari and other authorities: “A man would say to his wife, Send for such a one and have cohabitation with him; and the husband would remain aloof from her and would not touch her until her pregnancy was clear” (Bu. 67:37; N.). This is exactly the form which goes under the name of niyoga in the reformed Hindu sect, Arya Samaj. The third form was that in which any number of men, less than ten, would gather together and have cohabitation with a woman, and when she became pregnant and gave birth to a child, she would call for all those men and would say that the child belonged to such a one from among them, and he was bound by her word to accept the responsibility. Fourthly, there were prostitutes who were entered upon promiscuously and when one of them bore a child, a man known as qa’if (lit., one who recognized) was invited and his decision, based on similarity of features, was final as to who was the father of the child. The last three forms only legalized adultery in one form or another and Islam did not recognize any of them, nor was any such practice resorted to by any Muslim at any time.

Temporary marriage stood on a different basis, and reform in this matter was brought about gradually. Recently the idea has appealed to the Western mind which is seeking in temporary marriage, by way of experiment, a remedy for the rigidity of the Christian marriage laws. Islam, however, discarded the idea of temporariness in marriage, because it opens the way to loose relations of the sexes, and entails no responsibility of any kind on the father for the care and bringing up of the children, who, with the mother, might thus be left quite destitute. Occasions may arise for the dissolution of a permanent marriage, and will continue to arise as long as human nature is what it is, but the remedy for this is divorce and not temporary marriage. The moment the idea of temporariness is introduced into marriage, it loses its whole sanctity, and all responsibilities which are consequent on it are thrown off. According to the Holy Qur’an, the union of the two sexes is only lawful because of the acceptance of the responsibilities consequent thereupon, and the idea of a temporary marriage is not in accordance with it. A union of the sexes with the acceptance of the consequent responsibilities is called ihsan (marriage), and without such acceptance it is called safah (fornication), and the Holy Qur’an allows the first while it forbids the second (4:24).

There is some confusion in Hadith about the mut‘ah. Bukhari has the following as the heading of the chapter on Mut‘ah: “The prohibition by the Holy Prophet of mut‘ah finally.” Under this heading he cites first a hadith which says that ‘Ali (the reporter) said to Ibn ‘Abbas that the Holy Prophet prohibited mut‘ah and the eating of the flesh of domestic asses at the time of the Khaibar (expedition) (Bu. 67:32). It is then related that Ibn ‘Abbas being asked if the permission to practice mut‘ah related to the time of distress and when the number of women was very small, replied in the affirmative (ibid.) The third hadith is that of Salmah ibn Akwa’ who says that they were in an expedition when a messenger of the Holy Prophet came and said that they were permitted to contract temporary marriages, at the end of which Bukhari adds “and ‘Ali has made it clear, reporting from the Holy Prophet, that this was abrogated” (ibid.). Abu Dawud has two hadith from Sabrah, the first stating that the Holy Prophet prohibited mut‘ah in the year of the Farewell Pilgrimage (10 A.H.), and the second simply that he prohibited mut‘ah (AD. 12:13). There is no mention of mut‘ah having ever been allowed. Muslim has several contradictory hadith. But even there it is admitted that though mut‘ah was permitted on certain occasions, it was finally prohibited (M.16:3).

A consideration of the various hadith shows that the orders against mut‘ah were issued on several occasions: first on the occasion of the Khaibar expedition, according to ‘Ali; secondly on the occasion of the ‘umrah known as al-Qadza; thirdly at the conquest of Makkah; fourthly in the Autas expedition; fifthly in the Tabuk expedition; sixthly in the Farewell Pilgrimage. The earliest occasion is thus the Khaibar expedition, which took place in the beginning of the seventh year of Hijrah. The ‘umrah al-Qadza also relates to the seventh year, the other occasions to the eighth, ninth and tenth years. If mut‘ah was prohibited in the seventh year, as Bukhari states on the authority of ‘Ali, and this hadith is repeated four times, and is also accepted by Muslim and others, it could not have been permitted by the Holy Prophet after this. But as the only occasions on which it is reported to have been permitted relate to the eighth year, it seems that there must have been some misconception. The explanation given by some authorities, that it may have been prohibited on the earliest occasion only as a temporary measure, and that the final and decisive prohibition may have come later, is not only repugnant to reason but goes against the whole course of the history of reform, as brought about by Islam. The evils that prevailed in Arabia were not touched until the Holy Prophet received a Divine revelation, but when a reform was introduced after a Divine revelation, it was impossible that the Holy Prophet himself should have allowed the evil again. It is very probable that the first or a later reporter laboured under a misconception; or, if the hadith which speak of temporary marriages having been contracted are accepted as true, the right explanation seems to be that the practice of mut‘ah was a deep-rooted one, and that repeated injunctions had to be given by the Holy Prophet, or that all people were not at once apprised of the order of its prohibition.

At any rate the report that the Holy Prophet had sent a message to inform people of the legality of temporary marriages in the battle of Autas, in the 8th year of Hijrah, clearly seems to have been due to a misconception. It may be that someone who had not, up to that time, been informed of the illegality of a temporary marriage, told his companions that it was allowed, but the Holy Prophet could not have said so after having declared its prohibition at Khaibar. Notwithstanding its clear prohibition in the time of the Holy Prophet, it is stated that some men remained under a misconception even up to the time of ‘Umar, who had again to make a public declaration that temporary marriage was not allowed in Islam (M. 16:3). It may be further added that even those who legalized it, considered its legality to be dependent on idztirar (compulsion), and as on the same level as the permission to use prohibited food when driven by necessity (Bu. 67:32; M. 16:3). But even this position is unacceptable, as being quite opposed to the Holy Qur’an and to the clear injunctions of the Holy Prophet prohibiting it. All the Muslim sects agree in holding temporary marriage to be unlawful, with the exception of Akhbari Shi‘ahs, but even according to them it is not a very honourable transaction.

The Holy Qur’an forbids certain marriage relations: “Forbidden to you are your mothers, and your daughters, and your sisters, and your paternal aunts, and your maternal aunts, and brother’s daughters and sister’s daughters, and your mothers that have suckled you, and your foster-sisters, and mothers of your wives, and your step-daughters who are in your guardianship, born of your wives to whom you have gone in — but if you have not gone in to them, there is no blame on you — and the wives of your sons who are of your own loins, and that you should have two sisters together, except what has already passed” (4:23).

It will be seen that these prohibitions arise either from consanguinity, as in the cases of mother, daughter, sister, brother’s daughter, sister’s daughter, father’s sister and mother’s sister; or from fosterage, such as in the case of foster-mother and foster-sister; or from affinity, such as in the case of wife’s mother, wife’s daughter and son’s wife. Jurists have enlarged the conception of certain relations, and the Hidayah thus expands these prohibitions:

1. Mother includes all female ascendants both on the male, i.e. the father’s, and the female i.e. the mother’s side.

2. Daughter includes daughter of son or daughter, i.e. all female descendants how low so ever.

3. Father’s sister and mother’s sister do not include the daughters of the paternal and maternal aunts but include grandfather’s sister and grandmother’s sister and so on.

The second class of prohibitions relates to fosterage, but while the Holy Qur’an mentions only the foster mother and the foster-sister, Hadith is clear on the point that all those relations that are prohibited in marriage on account of consanguinity are prohibited also on account of fosterage (Bu. 67:21). Thus the foster-uncle of Hafsah was declared to fall within the prohibitions of the Holy Qur’an, and a daughter of Hamzah who, though an uncle of the Holy Prophet, was also his foster-brother, was regarded as forbidden for the Holy Prophet (Bu. 67:21). Certain foster-relations may, however, be complete strangers, though they would not be so in the case of blood relations. For instance, the brother’s mother is either the mother or stepmother of a man, and in both cases she is among the prohibited relations, but the foster-brother’s mother may be quite a stranger and in that case is not prohibited.

As to what constitutes fosterage (radza‘ah or giving suck), there is a very slight difference of opinion. A child is recognized as a suckling only up to the age of two years, in the Holy Qur’an (2:233), and there is no difference on this point. Hadith lays down that foster-relationship is not established unless the child is suckled when hungry (Bu. 67:22). Imam Abu Hanifah, however, considers the child’s being given suck only once as sufficient to establish foster-relationship; Imam Shafi‘i is of opinion that he must have been suckled four times, while the Shi‘ahs consider it necessary that he should have been suckled at least for twenty-four hours.

The third class of prohibitions is that which arises from affinity, and here, too, the Jurists have expanded the conception of relationship in the same manner as in the case of consanguinity. Thus wife’s mother includes wife’s mother’s mother, and so on; wife’s daughter includes her daughter’s daughter; son’s wife includes son’s son’s wife. Step-mothers are expressly prohibited in the Holy Qur’an: “And marry not women whom your fathers married” (4:22). Jurists also lay down that a man’s unlawful connection with a woman included her in the category of a wife so far as prohibitions arising from the wife’s connection are concerned.

The last prohibition relates to the gathering together of two sisters as co-wives. Hadith expands this conception and prohibits the gathering together of a woman with her paternal aunt or her maternal aunt (Bu. 67:27, 28). Fiqh expands the conception further and includes the wife’s brother’s and sister’s daughter in the same category. The rule is in fact laid down in the Hidayah that it is prohibited to have as wives at one time two women so related to each other that, if one of them were a man, their marriage would be prohibited.

The only other ground on which marriage is prohibited in the Holy Qur’an is shirk or associating gods with God: “And marry not the idolatresses (al-mushrikat) until they believe, and certainly a believing maid is better than an idolatress even though she pleases you; nor give (believing women) in marriage to idolaters until they believe, and certainly a believing slave is better than an idolater even though he pleases you” (2:221). Along with this, it is necessary to read another verse which allows marriage with women who profess one of the revealed religions: “This day all good things are made lawful for you. And the food of those who have been given the Book is lawful for you and your food is lawful for them. And so are the chaste from among the believing women and the chaste from among those who have been given the Book before you when you have given them their dowries, taking them in marriage, not fornicating nor taking them paramours in secret” (5:5). Thus it will be seen that while there is a clear prohibition to marry idolaters or idolatresses, there is an express permission to marry women who profess a revealed religion (Ahl al-kitab). And, as the Holy Qur’an states that revelation was granted to all nations of the world, and that it was only the Arab idolaters who had not been warned, the conclusion is evident that it was only with Arab idolaters that marriage relations were prohibited, and that it was lawful for a Muslim to marry a woman belonging to any other nation of the world that follows a revealed religion. The Christians, the Jews, the Parsis, the Buddhists and the Hindus all fall within this category; and it would be seen that, though the Christian doctrine of calling Jesus Christ a God or son of God is denounced as shirk, still the Christians are treated as followers of a revealed religion and not as mushrikin, and matrimonial relations with them are allowed. The case of all those people who have originally been given a revealed religion, though at present they may be guilty of shirk, would be treated in like manner, and Parsis and Hindu women may be taken in marriage, as also may those who follow the religion of Confucius or of Buddha or of Tao. Fiqh, however, recognizes only the legality of marriage with women belonging to the Jewish and Christian faith, and this is due to the narrow conception of the word Ahl al-Kitab adopted by the jurists. It is strange, however, that while the Majus or Parsis are not accepted as Ahl al-Kitab, the Sabians are expressly spoken of in the Hidayah as being Ahl al-Kitab. “And it is lawful to marry Sabian women (Sabiyat) if they profess a religion and accept a revealed book, for they are among Ahl al-Kitab.’’ If the Sabians are Ahl al-Kitab simply for the reason that they profess a religion and accept a revealed book, there is no reason why the Magians, the Hindus and others who profess a religion and accept a revealed book, should not be treated as such.

It may be noted here that, while there is an express mention of a Muslim man marrying a non-Muslim woman who professes a revealed religion, there is no mention of the legality or illegality of a marriage between a Muslim woman and a non-Muslim man. The mere fact however that the Holy Qur’an speaks of the one and not of the other is sufficient to show that marriage between a Muslim woman and a non-Muslim man is not allowed.

A marriage which is otherwise legal may be illegal because it does not fulfil a requirement of the law. For instance, the divorced woman and the widow have both to observe a waiting period (‘iddah), and marriage during this period is illegal. A woman who has been divorced thrice is not allowed to remarry her first husband. As the pregnant woman is required to observe ‘iddah till delivery (65:4), marriage during pregnancy is not allowed. But if a woman is pregnant by fornication, her marriage with either the fornicator or somebody else is allowed by Imam Abu Hanifah and Imam Muhammad, only in the latter case sexual intercourse is forbidden till delivery (H.I. p. 292). According to other Imams, including Imam Abu Yusuf, this is illegal. The Shi‘ah law follows Imam Abu Hanifah.