3.6.3 Form And Validity Of Marriage

The very fact that marriage is looked upon as a contract in Islam, shows that before marriage both parties must satisfy themselves that each will have a desirable partner for life in the other. The Holy Qur’an lays down expressly: “Marry such women as seem good to you (ma taba la-kum)” (4:3). The Holy Prophet is reported to have given an injunction to this effect: “When one of you makes a proposal of marriage to a woman, then if he can, he should look at what attracts him to marry her” (AD. 12:18), the heading of this chapter being: “A man should look at the woman whom he intends to marry.” Bukhari also has a chapter, headed “To look at the woman before marriage” (Bu. 67:36). Muslim has a similar chapter: “Inviting a man who intends to marry a woman to have a look at her face and hands” (M. 16:12). In this chapter is cited the case of a man who came to the Holy Prophet and said that he was marrying a woman from among the Ansar, and the Holy Prophet said to him. Hast thou looked at her? On his replying in the negative, the Holy Prophet said, Then go and look at her, for there is a defect in the eyes of (some) Ansar. In another hadith, it is reported that when Mughira ibn Shu‘ba made a proposal of marriage to a woman, the Holy Prophet asked him if he had seen her and on his replying in the negative, he enjoined him to see her, because “it was likely to bring about greater love and concord between them” (MM. 13:2-ii). The jurists are almost all agreed upon the istihbab (approval) of looking at the woman whom one intends to marry. And since the contract is effected by the consent of two parties, the man and the woman, and one of them is expressly told to satisfy himself about the other by looking at her, it would seem that the woman has the same right to satisfy herself before giving her assent. The consent of both the man and the woman is an essential of marriage, and the Holy Qur’an lays down expressly that the two must agree: “Prevent them not from marrying their husbands when they agree among themselves in a lawful manner” (2:232). In this respect, however, much will depend upon the customs prevailing among a people. Ahmad Shukri, quoting an earlier authority (‘Abd al-Qadir, al-Nahr, p. 218), says: “The time for seeing her should precede the betrothal … The woman is recommended to have a look at the man, if she wants to marry him; because anything that would please her with him will please him with her … (ASh., p. 43).

The word khataba which means he addressed (another) also signifies he made a proposal of marriage. The infinitive noun khutbah means an address and khitbah means proposal of marriage. When a man, who wants to marry, has satisfied himself about a woman, he makes a proposal of marriage either to the woman in question or to her parents or guardians. When a man has made a proposal of marriage to a woman, others are forbidden to propose to the same woman, till the first suitor has given up the matter, or has been rejected (Bu. 67:46). A woman may also make a proposal of marriage to a man (Bu. 67:33), or a man may propose the marriage of his daughter or sister to a man (Bu. 67:34); generally, however, it is the man who makes the proposal. When assent has been given to the proposal of marriage, it becomes an engagement, and usually a certain time is allowed to pass before the marriage (nikah) is performed. This period allows the parties to study each other further, so that if there be anything undesirable in the union, the engagement may be broken off by either party; it is only after the nikah has been performed that the two parties are bound to each other.

No particular age has been specified for marriage in the Islamic law; in fact, with the difference of climatic conditions, there would be a difference as to the marriageable age in different countries. But the Holy Qur’an does speak of an age of marriage which it identifies with the age of majority: “And test the orphans until they reach the age of marriage (nikah). Then if you find in them maturity of intellect, make over to them their property, and consume it not extravagantly and hastily, against their growing up” (4:6). Thus it will be seen that the age of marriage and the age of maturity of intellect are identified with full age or the age of majority. And as marriage is a contract the assent to which depends on personal liking, as already shown on the basis of the Holy Qur’an and Hadith, and since this function cannot be performed by any one but the party who makes the contract, it is clear that the age of marriage is the age of majority, when a person is capable of exercising his choice in matters of sexual liking or disliking. A man or a woman who has not attained puberty is unable to exercise his or her choice in sexual matters and unable to decide whether he or she will like or dislike a certain woman or man as wife or husband.

It is true that Jurisprudence, following the general law of contracts, recognizes, in the case of a marriage contract, the legality of the consent of a guardian on behalf of his ward, but there is no case on record showing that the marriage of a minor through his or her guardian was allowed by the Holy Prophet after details of the law were revealed to him at Madinah. His own marriage with ‘A’ishah which took place when she was nine years of age, is sometimes looked upon as sanctioning the marriage of a minor through his guardian, but there are two points worth consideration in this matter. In the first place, ‘A’ishah’s nikah at nine was tantamount only to an engagement, because the consummation of marriage was postponed for five years, to allow her, no doubt, to attain majority. In the second place, ‘A’ishah’s nikah was performed in Makkah long before the details of the Islamic law were revealed to the Holy Prophet, and therefore her marriage at nine can be no argument for the marriage of a minor. There is no reliable hadith showing that marriages were contracted by minors through their guardians in the time of the Holy Prophet, after the revelation of the fourth chapter which identifies the age of marriage with the age of majority. In the chapter headed “The giving in marriage by a man of his minor children” (Bu. 67:39), two arguments are brought forward, first, the report relating to ‘A’ishah’s marriage which has just been dealt with; and, secondly, a verse of the Holy Qur’an (65:4), whereon light is thrown in the next paragraph. Similar chapters in other books mention simply the case of ‘A’ishah.

Support is sometimes sought for the marriage of minors from the verse which speaks of women not having their course as being divorced: “And those of your women who despair of menstruation, if you have a doubt, the prescribed time shall be three months, and of those too who have not had their courses” (65:4). But it is wrong to identify women who have not had their courses with minors, for there may be cases in which a woman reaches the age of majority though she has not had her courses and it is with such exceptional case that this verse deals. At any rate, there is no mention anywhere in the Holy Qur’an or Hadith of minors being married or divorced. In Jurisprudence, however, the legality of the marriage of a minor when contracted by a lawful guardian is recognized. This subject is further discussed under the heading “Guardianship in marriage.”

Marriage is called a covenant (mithaq) in the Holy Qur’an, a covenant between the husband and the wife: “And how can you take it (i.e., the dowry) when one of you has already gone in to the other and they have taken from you a strong covenant (mithaq-an ghalizan)?” (4:21). The marriage contract is entered into by mutual consent expressed by the two parties, the husband and the wife, in the presence of witnesses, and that is the only essential. This mutual consent is technically called affirmation or declaration (ijab) and acceptance or consent (qabul) in Jurisprudence. The marriage is made complete by the expression of mutual consent in the presence of witnesses, but it was the practice of the Holy Prophet to deliver a sermon (khutbah), before the declaration of marriage was made, to give it the character of a sacred contract. A dowry (mahr) must also be settled on the woman, according to the Holy Qur’an, but the marriage is valid even if mahr is not mentioned, or even if the amount of mahr is not agreed upon. The expression of the consent is in the preterite form according to the Hidayah; for instance, the parties, would say, qabiltu (I have accepted) or zawwajtu (I have taken as my mate or partner), but no particular form or particular words are essential; any expression which conveys the intention of the parties in clear words is sufficient. It is not necessary that the proposal should come from one side and the acceptance from the other, or that the one should precede the other. The words of mutual consent may be addressed to each other by the two parties, but generally it is the man who delivers the sermon (khatib) who puts the proposal before each party, the latter giving consent to the proposal.

The second most important thing in marriage is mahr or dowry. The word generally used for dowry in the Holy Qur’an is ajr (pl. ujur), meaning reward and a gift that is given to the bride (LL.). The word saduqat (pl. of saduqah) is also once used in the Holy Qur’an to signify the nuptial gift (4:4). Another word sometimes used in the Holy Qur’an to indicate the nuptial gift is faridzah, literally what has been made obligatory or an appointed portion. The word mahr is used in Hadith to signify dowry, or the nuptial gift. According to the Holy Qur’an, the mahr is given as a free gift by the husband to the wife at the time of contracting the marriage: “And give women their dowries as a free gift” (4:4). The payment of the mahr on the part of the husband is an admission of the independence of the wife, for she becomes the owner of property immediately on her marriage, though before it she may not have owned anything. The settling of a dowry on the woman at the marriage is obligatory; “And lawful for you are all women besides those, provided that you seek them with your property, taking them in marriage, not committing fornication. Then as to those whom you profit by (by marrying), give them their dowries as appointed” (4:24). The payment of dowry is also necessary in the case of marriage with a slave-girl: “So marry them with the permission of their masters and give them their dowries justly” (4:25); and also in the case of a Muslim marrying a non-Muslim woman: “And 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” (5:5).

It would appear from this that the Holy Qur’an renders the payment of dowry necessary at the time of marriage. Hadith leads to the same conclusion. The payment of the dowry was necessary even though it might be a very small sum (Bu. 67:51,52; AD. 12:29, 30, 31). In exceptional cases, marriage is legal even though the amount of mahr has not been specified, but it is obligatory and must be paid afterwards. Thus the Holy Qur’an says, speaking of divorce: “There is no blame on you if you divorce women when you have not touched them, or appointed for them a dowry” (2:236). This shows that marriage is valid without specifying a dowry. Hadith also speaks of the validity of a marriage, even though dowry has not been named (AD. 12:31). But the dowry must be paid, either at the time of the consummation of marriage or afterwards. The amount of dowry in this case would depend upon the circumstances of the husband and the position of the wife. The Holy Qur’an makes this clear by requiring the provision for the wife to depend upon the circumstances of the husband, “the wealthy according to his means and the straitened according to his means” (2:236). In a hadith it is related that the case of a woman, whose husband had died before fixing a dowry and consummating marriage, was referred to ‘Abd Allah ibn Mas‘ud, who decided that she should be paid a dowry according to the dowry of the women of like status with herself, and his decision was afterwards found to be in accordance with the decision of the Holy Prophet in a similar case (AD. 12:31). In Jurisprudence, it is called customary dower (mahr mithl, lit., the mahr of those like her or her equals). It is determined by the mahr of her sisters and paternal aunts and uncles’ daughters (H.I, p. 304); that is to say, with reference to the social position of her father’s family. Therefore even if the dowry has not been specified at the marriage, it is to be determined and paid afterwards, and if unpaid in the husband’s lifetime, it is a charge on his property after his death. The plain words of the Holy Qur’an require its payment at marriage, barring exceptional cases when it may be determined or paid afterwards. Imam Malik follows this rule and renders payment necessary at marriage, while the Hanafi law treats it more or less as a debt.

No limits have been placed on the amount of mahr. The words used in the Holy Qur’an show that any amount of dowry may be settled on the wife: “And you have given one of them a heap of gold” (4:20). Thus no maximum or minimum amount has been laid down. The Holy Prophet paid varying amounts, to his wives; in one case when the Negus paid the amount to Umm Habibah (Abu Sufyan’s daughter), who was then in Abyssinia, where the marriage took place, it was four thousand dirhams, while in the case of the other wives it was generally five hundred dirhams. (AD. 12:28). The mahr of his daughter Fatimah was four hundred dirhams. The lowest amount mentioned in Hadith is a ring of iron (Bu. 67:52), and a man who could not procure even that was told to teach the Holy Qur’an to his wife (Bu. 67:51). In some hadith two handfuls of meal or dates are also mentioned (AD. 12:29). The amount of the dowry may, however, be increased or decreased by the mutual consent of husband and wife, at any time after marriage; and this is plainly laid down in the Holy Qur’an: “Then as to those whom you profit by (by marrying), give them their dowries as appointed. And there is no blame on you about what you mutually agree after what is appointed of dowry” (4:24).

Generally, however, mahr is treated simply as a check upon the husband’s power of divorce, and very high and extravagant sums are sometimes specified as mahr. This practice is foreign to the spirit of the institution, as laid down by Islam; for, mahr is an amount which should be handed over to the wife at marriage or as early afterwards as possible; and if this rule were kept in view, extravagant mahr would disappear of itself. The later jurists divide mahr into two equal portions, one of which they call prompt (mu‘ajjal, lit., that which is hastened) and the other deferred (mu’ajjal). The payment of the first part must be made immediately on the wife’s demand, while the other half becomes due on the death of either party, or on the dissolution of marriage.

Among the pre-Islamic Arabs, shighar was a recognized form of marriage, a marriage by exchange, in which one man would give his daughter or sister or other ward in exchange for taking in marriage the other man’s daughter or sister or ward, neither paying the dowry. Such a marriage was expressly forbidden by the Holy Prophet because it deprived the woman of her right of dowry (Bu. 67:29); which shows that the woman’s right of dowry is a right of which the wife cannot be deprived under any circumstances, and that it is her property and not the property of her guardians.

When the Holy Qur’an speaks of marriage, it at the same time excludes clandestine sexual relations, “taking them in marriage, not fornicating, nor taking them for paramours in secret” (4:24, 25; 5:5). Thus the one fact distinguishing marriage from fornication and clandestine relations is its publicity. The mutual consent of two parties to live as husband and wife does not constitute a marriage unless that consent is expressed publicly and in the presence of witnesses. An essential feature of the Islamic marriage is therefore the publication of the news by gathering together, preferably in a public place. There are hadith showing that marriage must be made publicly known, even with the beat of drums (Tr. 11:5; Ns. 26:72; IM. 9:20; Ah. IV, pp. 5, 77). With the same object in view music is allowed at marriage gatherings. On such an occasion, girls sang with the beating of drum (dzarb al-duff) in the presence of the Holy Prophet (Bu. 67:49). The following hadith on this subject may be quoted: “Make public this marriage and perform it in the mosques and beat drums for it.” “The difference between the lawful and the unlawful (i.e. marriage and fornication) is proclamation and the beating of drums.” “‘A’ishah had with her a girl from among the Ansar whom she got married. The Holy Prophet came and said, Have you sent the young girl to her husband? And on receiving a reply in the affirmative, he said, Have you sent with her those who would sing? ‘A’ishah said, No. Said the Holy Prophet, The Ansar are a people who love singing, and it would have been better if you had sent with her someone to sing thus and thus” (MM. 13:4—ii). The presence of witnesses, when so much stress is laid on proclamation, is a foregone conclusion.

The delivery of a sermon before the announcement of marriage is another factor which helps the publicity of the marriage, and, at the same time, serves the double purpose of giving it a sacred character and making it an occasion for the education of the community. When the friends and relatives of both parties have assembled, a sermon is delivered by someone from among the party, or by the Imam, before announcing the marriage itself. The text of this sermon, as reported from the Holy Prophet by Ibn Mas‘ud, consists of tashahhud, with which every sermon generally opens, and of three verses of the Holy Qur’an. Tashahhud, literally, means the act of bearing witness, and technically the bearing of witness to the Unity of God and the prophethood of Muhammad, and the tashahhud of the marriage sermon consists of the following words:

Al-hamdu li-llahi nahmadu-hu wa nasta‘inu-hu wa nastaghfiru-hu wa na-‘udhu bi-llahi min shururi anfusi-na wa min sayyi’ati a‘mali-na, man yahdi-hi-llahu fa-la mudzilla la-hu wa man yudzlil hu fa-la hadiya la-hu, wa ashhadu an la ilaha ill-Allahu wa ashhadu anna Muhammad-an ‘abdu-hu wa rasulu-hu.

All praise is due to Allah; we praise Him and we beseech Him for help and we ask for His protection and we seek refuge in Allah from the mischiefs of our souls, and from the evil of our deeds; whomsoever Allah guides there is none who can lead him astray and whom Allah finds in error, there is none to guide him; and I bear witness that there is no god but Allah and that Muhammad is his servant and His Messenger.

After the tashahhud, the Holy Prophet would take as his text the following three verses of the Holy Qur’an, viz., 3:102; 4:1; 33:70, 71 (MM. 13:4—ii). All three verses remind man of his responsibilities in general, and the middle one lays particular stress on the obligations towards women. I quote the three verses, as they form an essential part of the marriage sermon:

Ya ayyuha-lladhina amanu-ttaqu-llaha haqqa tuqati-hi wa la tamutunna illa wa antum Muslimun (3 : 102)

O you who believe! Keep your duty to Allah as it ought to be kept and die not unless you are Muslims.

Ya-ayyuha-n-nasu-ttaqu Rabba-kumu-lladhi khalaqa-kum min naf-sin wahidat-in wa khalaqa min-ha zauja-ha wa baththa min-huma rijal-an kathir-an wa nisa’a; wattaqullaha-lladhi tasa’aluna bi-hi wa-l-arham; inn Allaha kana ‘alai-kum raqiba (4 : 1).

O people! Keep your duty to your Lord Who created you from a single being and created its mate of the same (kind) and spread from these two many men and women. And keep your duty to Allah by Whom you demand one of another (your rights) and to the ties of relationship; surely Allah watches over you.

Ya-ayyuha-lladhina amanu-ttaqu-llaha wa qulu qaul-an sadid-an yuslih lakum a‘mala-kum wa yaghfir la-kum dhunuba-kum wa man yuti‘i-llaha wa rasula-hu fa-qad faza fauz-an ‘azima (33 : 70-71).

O you who believe keep your duty to Allah and speak straight words: He would put your deeds into a right state for you and forgive your sins; and whoever obeys Allah and His Messenger he indeed achieves a mighty success.

The sermon of course must expatiate on these verses and explain to the audience the mutual rights and duties of husband and wife. At the conclusion of the sermon is made the announcement that such and such a man and such and such a woman have accepted each other as husband and wife, and the dowry is also announced at the time. The man and the woman are then asked if they accept this new relationship and on the reply being given in the affirmative, the marriage ceremony proper is concluded. The consent of the woman is generally obtained through her father or other guardian or relation. After the expression of consent by both parties, the whole audience raises its hands and prays for the blessings of God on the newly wedded couple. Generally some dates or sweets are distributed before the audience disperses. The words of prayer in one hadith are barak-Allahu la-ka, or may Allah shower His blessings on thee (Bu. 67:57). In another, the words are, barak-Allahu wa baraka ‘alai-ka wa jam‘a baina-kuma fi khair-in (Tr. 11:6) — which means, “May Allah shower His blessings (on the union) and may He bless you and unite you two in goodness.”

That there should be witnesses of marriage is clear enough from what has already been stated. The Holy Qur’an requires witnesses even for ordinary contracts and business transactions (2:282), and marriage is a contract of the highest importance, a contract affecting the lives of two persons to an extent to which no other contract affects them. It further requires witnesses even in the case of the dissolution of marriage by divorce (65:2). The Hanafi law rightly lays special stress on this point, so that marriage is not valid if at least two witnesses are not there (H.I, p. 286). To procure the best testimony, and one free from doubt of all kinds, it is quite in accordance with the law of Islam that all marriages should be registered.

After nikah is over, the bride is conducted to the husband’s house, and this is followed by the marriage-feast called walimah. This feast is another step in the publicity of the marriage, and hence the Holy Prophet laid stress on it. It is related of ‘Abd al-Rahman ibn ‘Auf that the Holy Prophet, on being told of his marriage, prayed for him and told him to arrange for a feast though there be only one goat to feed the guests (Bu. 34:1; 67:7, 57). On the occasion of his own marriage with Safiyyah, when returning from Khaibar, he gave a feast in which every one was required to bring his food with him (Bu. 8:12). Of course this was on a journey, but at the same time it shows the great importance given to the marriage-feast. He also invited his friends to a walimah feast on the occasion of his marriage with Zainab, which is said to have been the most sumptuous of all his walimah feasts, and yet he slaughtered only one goat (M. 16:15). Bukhari devoted several chapters to walimah in particular, in addition to numerous stray references.

The essence of marriage being then, according to Islam, the consent of two parties, after they have satisfied themselves about each other, to live together as husband and wife permanently and accepting their respective responsibilities and obligations in the married state, it follows from its very nature that the marriage contract requires the contracting parties to have attained puberty and the age of discretion. The Holy Qur’an has already been quoted on this point, and fiqh also recognizes this principle. Thus, according to the Fatawa ‘Alamgiri, “among the conditions which are requisite for the validity of a contract of marriage are understanding (‘aql), puberty (bulughah) and freedom (hurriyyah) in the contracting parties” (Ft.A.II, p.l). A distinction is, however, made between a minor who is possessed of understanding and one who is not so possessed, and while a marriage contracted by the latter is recognized as a mere nullity, one contracted by the former can have its invalidity removed by the consent of his guardian. As regards those who have attained majority, there is no difference of opinion in the case of the man, who can give his consent to marriage without the approval of a guardian, but some difference exists in the case of the woman, whether she can give such consent without the approval of her father or guardian. The Hanafi view of the law of Islam answers this question in the affirmative: “The marriage contract of a free woman who has reached the age of majority, and is possessed of understanding, is complete with her own consent, whether she is a virgin or has been married before, though it may not have been confirmed by her guardian” (H. I, p. 293). The Shi‘ah view is exactly the same: “In the marriage of a discreet female (rashidah, or one who is adult), no guardian is required” (AA.). Both Malik and Shafi‘i hold that the consent of the guardian is essential. Bukhari inclines to the same view as that of Malik and Shafi‘i, the heading of one of his chapters being, “Who says that there is no marriage except with the consent of a guardian” (Bu. 67:37); though he adds another, “The father or any other guardian cannot give in marriage a virgin or one who has been married before without her consent” (Bu. 67:42). At the same time, he extends the meaning of the word guardian, saying that “the king is a guardian” (Bu. 67:41), and cites under this heading the case of a woman who came to the Holy Prophet and offered herself for marriage, and she was then and there married to a person who could not even settle any dowry on her on account of his poverty. It does not appear whether or not she had a natural guardian (father or other near relative). Some Qur’anic verses are quoted which however do not speak of a guardian in express words. Thus: “And when you divorce women and they end their term, prevent them not from marrying their husbands if they agree among themselves in a lawful manner” (2:232). From this it is probably concluded that the injunction against preventing women from marrying husbands who have divorced them presupposes a right of the guardian. This argument is, however, defective, as the guardians are here prohibited from exercising any such right, in the case at least of a thayyibah (a woman who has seen a husband). The other verse quoted is: “… Nor give believing women in marriage to idolaters until they believe” (2:221). The argument is that the verse is addressed to the guardian, who have therefore the right to give in marriage. But this is also doubtful as the verse may just as well be addressed to the Muslim community as a whole, as on so many other occasions.

Among the hadith cited by Bukhari, the first is that in which ‘A’ishah speaks of four kinds of marriage, and the first of these which was the only form sanctioned by Islam is stated to be that in which “one man makes a proposal to another regarding his ward or his daughter, then he settles a dowry on her and marries her.’’ But that describes the general practice, and does not lead to the conclusion that a woman cannot marry without the consent of a guardian. The second hadith is also from ‘A’ishah and in it she speaks of the guardian of an orphan girl marrying her himself. That however is only ‘A’ishah’s interpretation of a certain verse of the Holy Qur’an and there is no reference in it to any particular incident that might have occurred. The third speaks of ‘Umar proposing his widowed daughter Hafsah to Abu Bakr. This, too, does not establish that marriage is invalid without the consent of a guardian. It only shows that the father of a widow may exert himself to procure a match for his daughter. None of the other three hadith mentioned in this chapter has any bearing on this subject.

On the other hand, the Holy Qur’an, as well as Hadith, recognizes a woman’s right to marry the man she pleases. Thus the verse quoted above says plainly: “Prevent them not from marrying … in a lawful manner” (2:232). This is the case of a divorced woman. And of a widow the Holy Qur’an says: “Then if they themselves go away, there is no blame on you for what they do of lawful deeds concerning themselves “(2:240). This recognizes the widow’s right to marry herself. These two verses clearly recognize the right of the thayyibah (the divorced woman or the widow) to give herself in marriage, and prohibit the guardian from interference when the woman herself is satisfied. This is quite in accordance with a hadith: “Al-ayyim (the widow and the divorced woman) has greater right to dispose of herself (in marriage) than her guardian” (AD. 12:25). The words of another hadith are: “The guardian has no business in the matter of a thayyibah” (ibid).

In view of the verses and hadith quoted above, it seems clear that the widow and the divorced woman are allowed complete freedom in the choice of their husbands. Does the same rule apply to virgins? The Imam Abu Hanifah answers this question in the affirmative. His principle is that, since a woman who has attained the age of majority can dispose of her property without reference to a guardian, so she is also entitled to dispose of her person. But at the same time it cannot be denied that there is a natural bashfulness about the virgin, and, moreover, she has not the same experience of men and affairs as has a widow or a divorced woman, and it is therefore in the fitness of things that her choice of a husband should be subject to the check of a father or other guardian, who would also settle the terms, and guard her against being misled by unscrupulous people. But as the contract, after all depends on her consent and not on the consent of her guardian, which in fact is only needed to protect her, her will must ultimately prevail and the opinion of Imam Abu Hanifah is more in accordance with the essentials of marriage as expressed by the Holy Qur’an. He says: “Her’s is the right of marrying, and the guardian is only sought lest it (the contraction of marriage) should be attributed to waqahah (want of shame)”. (H.I,p.294); and again: “It is not lawful for the guardian to compel a virgin who has attained majority to marry according to his wishes” (ibid.). Hadith also supports this view, for the Holy Prophet is reported to have said: “The widow and the divorced woman shall not be married until her order is obtained, and the virgin shall not be married until her permission is obtained” (Bu.67:42). And Bukhari’s next chapter is headed thus: “When a man gives his daughter in marriage and she dislikes it, the marriage shall be repudiated” (Bu. 67:43), and a hadith is quoted showing that the Holy Prophet repudiated such a marriage.

The jurists have also dealt with cases of the marriage of minors. According to Hanafi interpretation of the Muslim law, “the marriage of a minor boy or girl is lawful, whether the minor girl is a virgin or a thay-yibah, provided the guardian is one of the ‘asabah (relations on the father’s side) (H.I, p. 295). Malik recognizes such marriage only when the guardian is a father, and Shafi‘i when the guardian is a father or a grandfather (ibid.). Again in the Hanafi law, if the minor has been given in marriage by a guardian who is not the father or the grandfather, the minor has the opinion, on attaining majority, of repudiating the marriage. But, as a hadith already quoted shows, even if the father gives away his daughter in marriage against her wishes, and she is of age, the marriage must be repudiated if the girl desires, and so in the case of a minor too if, on coming of age, she finds the match unsuitable. Bukhari speaks only of a thayyibah (a widow or a divorced woman), but another hadith is reported from Ibn ‘Abbas, stating that a virgin girl came to the Holy Prophet and said that her father had married her against her wishes, and the Holy Prophet gave her the right to repudiate the marriage (AD. 12:25). He also mentions the case of a thayyibah (AD. 12:27).

Akfa’ is the plural of kuf’ which means an equal or one alike. For example, the Arabs are the akfa’ of the Arabs and the Quraish are the akfa’ of the Quraish. Thus the people of one tribe or one family would be akfa’ among themselves, and people of one race would be akfa’ among themselves. There is nothing in the Holy Qur’an or in the Hadith to show that a marriage relation can only be established among the akfa’. It is quite a different thing that, generally, people should seek such relations among the akfa’, but Islam came to level all distinctions, whether social, tribal or racial, and therefore it does not limit the marriage relationship to akfa’. The principle that tribes and families have no special value with God is clearly established: “O mankind, surely We have created you from a male and a female, and made you tribes and families that you may know each other. Surely the noblest of you with Allah is the most dutiful of you” (49:13). The way is opened for establishing all kinds of relationships between Muslims to whatever country or tribe they may belong by declaring that “the believers are brethren” (49:10), and “the believers, men and women, are friends (auliya’) of each other” (9:71). The Holy Prophet interpreted these verses by saying: “The Arab has no precedence over the non-Arab, nor the non-Arab over the Arab, nor the white man over the black one, nor the black man over the white one except by excelling in righteousness.”

When speaking of contracting marriage-relationships, the Holy Qur’an speaks only of certain forbidden relations and then adds: “And lawful for you are all women besides those” (4:24). And again it goes so far as to allow marital relations with non-Muslims: “And so are the chaste from among the believing women and the chaste from among those who have been given the Book before you” (5:5). The Holy Prophet recommended the marriage of a lady of the tribe of Quraish of the noblest family, his aunt’s daughter, Zainab, to Zaid who was a liberated slave; and Bilal, a Black man, was married to the sister of ‘Abd al-Rahman ibn ‘Auf. There are other examples of the same kind in the early history of Islam. In one hadith it is stated that the Holy Prophet recommended a certain man, called Abu Hind, to the tribe of Bani Bayadz, to whom he stood in the relation of a maula (a liberated slave), and followed the profession of hajamah (the craft of cupping), saying: “O Bani Bayadz! Give (your daughters) to Abu Hind in marriage and take in marriage his daughters” (AD. 12:26). This hadith cuts at the root of the limitation of marriage to akfa’; yet the jurists have insisted on it. Imam Malik, in this respect, differs from others, saying that kafa’ah (equality) is brought about by religion, that is to say, all Muslims are alike or equal. The majority of the jurists require equality in four things—religion, freedom, descent and profession. Imam Shafi‘i says that he could not declare a marriage outside the akfa’ to be illegal (haram); it is a disability which is removed by the consent of the woman and her guardians.

It is lawful to impose and accept conditions, which are not illegal, at the time of marriage, and the parties are bound by such conditions. The Holy Prophet is reported to have said: “The best entitled to fulfilment of all conditions that you may fulfil, are the conditions by which sexual union is legalized” (Bu. 67:53; AD. 12:39). It is also related that the Holy Prophet spoke of a son-in-law of his (an unbeliever), in high terms, saying: “He spoke to me and he spoke the truth, and he made promises with me and he fulfilled those promises” (Bu. 67:53). Illegal conditions are those which are opposed to the law of Islam or to public morality, for instance, that the wife shall have the right to frequent immoral places or that she shall not be entitled to any dower or maintenance or that the husband and the wife shall not inherit from each other. If such a condition be imposed the condition is void while the marriage is valid. Examples of legal conditions are that the wife shall not be compelled to leave her dar (conjugal domicile), that the husband shall not contract a second marriage during the existence of the first, that the husband and the wife or one of them shall live in a specified place, that a certain portion of the dower shall be paid immediately and the remainder on death or divorce, that the husband shall pay the wife a certain amount by way of maintenance, that he shall not prevent her from receiving visits from her relatives, that the wife shall have the right to divorce for a specified reason or for any reasonable cause, and so on (AA.).

As a rule, Islam recognizes only the union of one man and one woman as a valid form of marriage. Under exceptional circumstances it allows the man more wives than one, but does not allow the woman more husbands than one. Thus while a married woman cannot contract a valid marriage, a married man can do it. There is no difficulty in understanding this differentiation, if the natural duties of man and woman in the preservation and upbringing of the human species are kept in view. Nature has so divided the duties of man and woman, in this respect, that while one man can raise children from more wives than one, one woman can have children only from one husband. Therefore while polygamy may at times be a help in the welfare of society and the preservation of the human race, polyandry has no conceivable use for man.

In the first place it must be borne in mind that polygamy is allowed in Islam only as an exception. It is expressly so stated in the Holy Qur’an: “And if you fear that you cannot do justice to orphans, marry such women as seem good to you, two or three or four: but if you fear that you will not do justice (between them), then (marry) only one” (4:3). This is the only passage in the Holy Qur’an that speaks of polygamy, and it will be seen that it does not enjoin polygamy; it only permits it and that, too, conditionally. Before we consider the significance of this verse, it must be understood clearly that polygamy is here allowed only when there are orphans to be dealt with, and it is feared that they will not be dealt with justly. This condition relates more to the welfare of society than to the needs of the individual.

The traditional interpretation put upon this verse is that of ‘A’ishah, as contained in the Bukhari. She is reported to have said: “This is the orphan girl who is under the care of her guardian and is his partner in property, and her property and her beauty please him, so her guardian wishes to marry her without being just in regard to her mahr, so that he should give her what another man would give; so they were forbidden to marry them unless they would do justice to them and give them their dowries according to their usage, and therefore they were commanded to marry other women that seemed good to them” (Bu. 65, surah 4, ch. I). It will be seen that this explanation introduces into the passage words and phrases of which there is no trace, nor is this significance traceable to the Holy Prophet. It is unacceptable for another reason too. Verse 127 of this very chapter, which is admittedly a further explanation of the verse under discussion, is thus explained by ‘A’ishah: “It is the man who has got an orphan girl of whom he is a guardian and an inheritor, so she becomes his partner in his property, even in the palm trees, and he is disinclined to marry her, nor does he like that she should marry another person who would thus become his partner in his property on account of her partnership and therefore prevents her from marrying” (ibid.). Admittedly the latter verse explains the previous one, but ‘A’ishah’s explanation of the latter is just the opposite of her explanation of the former. The guardian is described as desiring to marry his girl ward in the first case, and the first verse is said to be a prohibition against it, while in the case of the latter verse he is said to be disinclined to marry her himself or to anybody else.

Hence it is that the commentators have suggested three other explanations. The first of these is that this verse (4:3) is only meant to prohibit the marrying of more wives than four, so that not having too many wives they may not be tempted to embezzle the property of the orphans, when their own proved insufficient. The second is that if you fear that you cannot be just to orphans, you should also fear that you cannot be just to too many wives. The third is that if you fear that you cannot be just to orphans, you should also fear the great sin of adultery, and to shun it you are allowed up to four wives.

It will be seen that these explanations are even less satisfactory than the one given in the Bukhari. The meaning of this verse is really explained by 4:127: “And they ask thee a decision about women. Say: Allah makes known to you His decision concerning them; and that which is recited to you in the Book is concerning widowed women whom you give not what is appointed for them, while you are not inclined to marry them, nor to the weak among children, and that you should deal justly with orphans.” The reference to “that which is recited in the Book” is admittedly to 4:3. And the reference in “whom you give not what is appointed for them … nor to the weak among children” is to the Arab custom, according to which women and minor children did not get a share of inheritance, the recognized usage being that only he could inherit who could ride on the back of a horse and take the field against the enemy. The position was therefore this, that when a widow was left with orphans to bring up, she and her children would get no share of the inheritance, nor were people inclined to marry widows who had children. In 4:3, the Holy Qur’an has therefore enjoined that if you cannot be otherwise just to orphans, marry the mothers of such orphans so that you may thus be interested in their welfare, and for this purpose you are allowed to contract other marriages.

A consideration of the historical circumstances of the time when this chapter was revealed corroborates this conclusion. It was a time when the Muslims were compelled to carry on incessant war against an enemy bent upon their extirpation. The breadwinners had all to take the field against the enemy, and many had been lost in the unequal battles that were being fought by the small Muslim band against overwhelming forces. Women had lost their affectionate husbands and young children their loving fathers, and these widows and orphans had to be provided for. If they had been left to the mercy of circumstances, they would have perished, and the community would have been weakened to such an extent that it would have been impossible to maintain the struggle for life. It was under these circumstances that the fourth chapter was revealed, allowing the taking of more wives than one, so that the widows and orphans may find a shelter. If you fear, says the revelation, that you will not be able to do justice to orphans, marry women (the mothers of the orphans) up to four, but only on condition that you are just to all of them. That by women here are meant the mothers of orphans is made clear by v.127, as already shown.

It might be said that other arrangements could be made for the maintenance of widows and orphans. But a home-life could not be given to them in any other manner, and home-life is the real source whence all those good qualities of love and affection spring, which are the greatest asset of social life and civilization. Islam bases its civilization on home-life; and under exceptional circumstances, where monogamy fails to provide a home for widows and orphans, it allows polygamy to extend to them that advantage. Even if it be half a home that the women and children find in a polygamous family, it is better than no home at all. Moreover, a community the ranks of whose fighting men were daily dwindling stood in urgent need of increasing its numbers by all possible means, and hence also it was necessary to provide a home for the widows so that they might be helpful in strengthening the numerical position of the community. The moral aspect of the question is not the least important. The war had decimated the male population and the number of women exceeded that of men. This excess, if not provided with a home, would have led to moral depravity, which is the greatest danger to a civilization like that of Islam, which is based on morality.

The question of war is not peculiar to one age or one country. It is a question which affects the whole of humanity for all ages to come. War must always be a source of decrease in the number of males, bringing about a corresponding increase in the number of females and a solution will have to be sought by all well-wishers of humanity for the problem of the excess of women over men. Monogamy is undoubtedly a right rule of life under normal conditions, but when abnormal conditions are brought about by the excess of females over males, monogamy fails, and it is only through a limited polygamy that this difficulty can be solved. Europe is to-day confronted with that question, independently of war, and war only aggravates its seriousness. Professions may be opened up for women to enable them to earn bread, and Islam has never closed the door of any profession against women. But the crux of the question is not the provision of bread but the provision of a home-life and that question cannot be solved without polygamy.

It may be added here that polygamy in Islam is, both in theory and in practice, an exception, not a rule, and as an exception it is a remedy for many of the evils of modern civilization. It is not only the preponderance of females over males that necessitates polygamy in certain cases, but there is a variety of other circumstances which require polygamy to be adopted under exceptional circumstances, not only for the moral but also the physical welfare of society. Prostitution, which is on the increase with the advancement of ‘civilization’, and which is eating into it like a canker, with its concomitant increase of bastardy, is practically unknown to countries where polygamy is allowed as a remedial measure.

It may be further stated that the institution of polygamy, which was allowed by Islam only as a remedy, has largely been abused by sensual people, but then there are people in every society who would abuse any institution, however necessary it may be to the right growth of human society. In countries where polygamy is not allowed, the sensuality of man has invented a hundred other ways of giving vent to his carnal passions, and these are a far greater curse to society than the abuse of polygamy. Indeed, that abuse can be easily remedied by the state by placing legal limitations upon its practice, while the state is quite helpless against the evils which result from its entire rejection.