Voices of Islam (139 page)

38. Ibid., 74.

1. On early Islamic jurisprudential opinions on marriage, see Kecia Ali, ‘‘Money, Sex, and Power: The contractual Nature of Marriage in Islamic Jurisprudence of the Formative Period’’ (Ph.D. dissertation, Duke University, 2002).
   

2. Shahla Haeri,
   Law of Desire: Temporary Marriage in Shi‘i Iran
   (New York: Syracuse University Press, 1989), 34.
   

3. Ali, ‘‘Money, Sex, and Power,’’ 475. 42. Ibid., 354.
   

1. Max Weber,
   The Theory of Social and Economic Organization,
   trans.
   

   M. Henderson and T. Parsons (New York: Oxford University Press, 1947), 152–153.
   

2. Robert A. Dahl, ‘‘The Concept of Power,’’
   Behavioral Science
   2 (July 1957): 202–203.
   

3. Peter Bachrach and Morton S. Baratz, ‘‘Two Faces of Power,’’
   American Political Science Review
   56 (December 1962): 947–952.
   

4. Elmer E. Schattschneider,
   The Semi-sovereign People
   (New York: Holt, Rinehart and Winston, 1960), 71.
   

5. Peter Bachrach and Morton S. Baratz,
   Power and Poverty: Theory and Practice
   

   (New York: Oxford University Press, 1970), 42–46.
   

6. Steven Lukes,
   Power: A Radical View
   (London, U.K.: Macmillan, 1974), 23.
   

49. Ibid., 24.

1. Gaventa,
   Power and Powerlessness,
   15.
   

2. Clifford Geertz, ‘‘Religion as a Cultural System,’’ in Anthropological Approaches to the Study of Religion, ed. M. Banton (London, U.K.: Tavistock, 1966), 1–46.
   

3. Clifford Geertz,
   The Interpretation of Cultures: Selected Essays
   (New York: Basic Books 1973), 4.
   

4. Geertz, ‘‘Religion as a Cultural System,’’ 1966, 8.
   

5. Paul Tillich,
   Theology of Culture
   (New York: Oxford University Press 1959), 42.
   

6. Paul Tillich,
   What is Religion?
   (New York: Harper Torchbooks, 1969), 59.
   

3
‌

M
ARRIAGE IN
I
SLAM

•

Nargis Virani

The Qur’an is the foundational and inspirational basis of all Islamic laws, albeit interpreted and adapted to the historical and contemporary circumstances and situations of various groups. Over the last century, some of the traditional rulings related to the person and the family were codified in a modern category known as Muslim Family Law. One or another version of Muslim Family Law is in force in most Muslim countries today. In other countries where Muslims do not form a majority, there may be a provision for the application of Muslim Family Law for its Muslim population. For example, enshrined in the Constitution of the Republic of India is the right of Indian Muslims to be governed by Muslim Family Law in their personal and religious affairs.

Over time, besides the Qur’an, other sources of law were developed and acknowledged. These played a highly signifi role in the codifi of Islamic Law in general, and family law in particular. Where the specifi ties of particular situations were not directly addressed in the Qur’an, or where the application of a specifi verse of the Qur’an to a particular situation permitted several interpretations, Muslim jurists customarily turned to the Sunna, including the Hadith of the Prophet Muhammad. In addition, the jurists routinely resorted to
ijtihad
(personal, intellectual, and jurisprudential endeavor), which resulted in a system of reasoning and interpretation that developed important foundational principles over the course of several centuries of implementation. One such principle states that laws may change according to time, place, and circumstance. There is a clear recognition that previously unencountered situations demand the boundaries of Islamic law to be reexamined and, if necessary, expanded, albeit within the confines of Qur’anic regulations. Theoretically, this principle offers a reasonable degree of flexibility for the application of Islamic law at all times and for all commun- ities. In practice, however, the
ijtihad
of jurists on all matters generally, and on marriage and divorce particularly, was often partial to their various environments. In addition, the male gender of almost all jurists until

58
Voices of Life: Family, Home, and Society

contemporary times, irrespective of the particular school of jurisprudence, resulted in the exclusion of the female perspective.

Nowadays, matters related to marriage and divorce fall under the rubric of Muslim Family Law. In the earlier periods of Islamic history, however, Muslim Family Law was not codifi Thus, each judge resorted to the Qur’an and Hadith when faced with a certain issue and performed his own
ijtihad.
Over time, different schools of legal thought became established. This resulted in diverse groups influenced by varied sectarian and theological persuasions, as well as different ruling powers, which selected the jurispru- dence of a particular school as the basis of their legal system. This practice continues in our times. The major schools of Islamic law are the Maliki, Hanbali, Hanafi, Shafi‘i, and Ja‘fari (largely followed by the Twelver Shiites), named as such after their founder figures. An important point to note is that it is possible to encounter substantial jurisprudential variations between schools and among different scholars within each school.

THE CONTEXT OF MARRIAGE IN ISLAM

In Islam, marriage is an institution in which a man and a woman are joined in a physical, social, and legal relationship. The Qur’an lays down the foundations of the physical and social aspects of the institution of marriage and specifies some of the legal rules that govern them. It also stipulates clear rules for the dissolution of marriage in the unfortunate case that the marriage becomes unsustainable. Hence, both marriage and divorce are issues that are discussed extensively in the Qur’an.

The Qur’an conceives of marriage as a civil contract between a man and a woman. As such, it is governed by rules that define the relationship between two contracting parties. Marriage is the favored institution for a legitimate sexual relationship between a man and a woman. The Qur’an recognizes sexuality as a central feature of the natural world and consequently as an innate and vital dimension of human existence. Thus, even though it lays down certain rules that govern human sexuality (for example, within the con- fines of marriage), it authorizes sexual pleasure and does not only condone sex for the sake of procreation.

In premodern times, concubinage was a possible secondary institution whereby a man purchased a female slave and contracted a sexual relationship with her. Outside of the institutions of marriage and concubinage, however, the Qur’an views all other sexual relationships as illicit. Either explicitly or by implication, it condemns incest, adultery, fornication, prostitution, prom- iscuity, lewdness, and homosexuality. It also stipulates punishments for such infringements. Chastity is an essential virtue demanded of all Muslims, both men and women alike. Marriage is desirable for every member of the Muslim community, even for slaves. Celibacy is not regarded as a virtue. The Prophet

Marriage in Islam
59

Muhammad is reported to have said, ‘‘There is no monasticism in Islam.’’ He is also reported to have given the following advice to his followers: ‘‘Whoever is well-off, let him marry, for he who does not marry is not one of us.’’ He also stated, ‘‘Oh assembly of young men! Whoever can afford to marry, let him do so, for it is more effective in lowering one’s gaze and keepings one’s privates chaste. Whoever cannot do this, should fast, for it has the effect of restraining lust.’’

Allowable sexual relations in the Qur’an are designated by the term
nikah,
which connotes both marriage and intercourse (Qur’an 2:221, 230, 232, 235, 237; 4:3, 6, 22, 25, 127; 24:3, 23, 33, 60; 28:27; 33:49, 50, 53).

Marriage prevents sexual frustration and the temptation to sin (Qur’an 24:32). Married persons, in other words, those with a licit sexual partner, are called
muhsan
(masc.) or
muhsana
(fem.), ‘‘guarded’’ or ‘‘fortifi ’ Illicit sex or contraventions of sexual conventions are called
fahisha
(Qur’an 3:135; 4:15, 19, 22, 25; 6:151; 7:28, 33, 80; 17:32; 24:19; 27:54; 29:28;

33:30; 42:37; 53:32; 65:1). The collective term
al-fahsha’
also appears in

the Qur’an (Qur’an 2:169, 268; 7:28; 12:24; 16:90; 24:21; 29:45).

The Qur’an refers to adultery or fornication as
zina
and to the adulterer as a
zani
(masc.) or
zaniya
(fem.) (Qur’an 17:32; 24:2, 3; 25:68; 60:12). The Qur’an is silent on other sexual infractions, including homosexuality (
liwata
), lesbianism (
sahq, sihaq
), bestiality, and masturbation (
istimna, nikah al-yad, jald ‘umayra
).

Another obvious and practical reason to contract marriage is to ensure the flourishing of the community through reproduction. In practical terms, most of the laws of marriage and divorce in Islam are primarily concerned with safeguarding the rights and well-being of children (Qur’an 4:2; 7:189; 16:72; 17:24). In addition, Qur’anic rulings support and protect female members of the community such as widows, divorcees, and orphans, who may, for one reason or another, no longer have access to family support.

TERMS FOR MARRIAGE IN ISLAM

Among Muslims, the most commonly used term for marriage is
nikah,
which literally means ‘‘sexual intercourse.’’ As a legal term,
nikah
denotes the situation resulting from a contract entered into by a Muslim man and a Muslim woman, which legitimizes cohabitation and sexual intercourse between the signers of the contract in the eyes of God and their co- religionists. Among many contemporary Muslims, the term
nikah
has acquired religious significance, particularly for those living under secular governments where court registration of the marriage contract is mandatory. A civil registration or marriage license is perceived as a secular and legal obligation as opposed to
nikah,
which is a religious obligation. The verb

60
Voices of Life: Family, Home, and Society

nakaha,
‘‘to marry,’’ is used to denote either the man marrying the woman or the woman marrying the man.

Based on the Qur’anic term for a pair,
zawj,
each of the marriage partners is called
zawj
(fem.
zawja
), literally, ‘‘one of a pair’’ or ‘‘one of a couple.’’ In Muslim countries where Arabic language and culture predomi- nate, marriage is referred to as
zawaj,
literally, ‘‘pairing.’’ More recently, the term
zawaj
has gained currency on cyberspace among non-Arabs as well. According to both tradition and Islamic law, a marriage is a public act, and thus it must be publicized. A feast or a celebration is usually held on such an occasion. The marriage celebration may be referred to as
‘urs
(Arabic),
izdiwaj/‘arusi
(Persian and Dari),
shaadi
(Urdu), or
dugun
(Turkish).