Voices of Islam (141 page)

Witnesses (Shahid)

In Sunni Islam, a marriage contract is a public document. Thus, all Sunni schools require the presence of two male witnesses for the marital contract to be valid. The presence of one male and two females may also fulfi l this requirement. The Shi‘a do not require the presence of any witnesses as a condition of the marriage contract. Thus, a man and a woman may conclude a marital contract in private or in secret, if they wish to do so.

Bride Wealth (Mahr
or
Sadaq)

The
mahr
or
sadaq,
‘‘dower,’’ is an essential feature of the marriage con- tract. It is specifi as a payment to the bride herself, and not to her father or guardian. The
mahr
is a gift of money or property that must be given by the prospective husband to legally validate the marriage. Theoretically, the

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amount of
mahr
is to be negotiated between the bride and the groom. In practice, however, the guardian frequently negotiates the
mahr,
often without the bride’s input or knowledge. Such practices usually occur because of lack of knowledge about the proper Shari‘a rules or because of established cultural traditions. Although it is technically not permissible under Islamic law for the guardian to negotiate the dower, sanctions against this practice are seldom applied.

The
mahr
may be given all at once or it may be divided into two parts; one to be paid before consummating the marriage (
mahr al-muqaddam
) and the other stipulated for future payment in the event of divorce or death (
mahr al-mu’ajjal
or
mu’akhkhar
). The amount of the
mahr
is individually determined and is customarily commensurate with the economic and social standing of the bride’s family. It is henceforth considered the sole property of the bride. This stipulation is not to be confused with the practice prevalent in some parts of the world, in Muslim and non-Muslim societies alike, whereby the bride’s family demands the ‘‘bride price’’ as the price for the woman they are giving away. The
Mahr
would thus be more accurately understood as ‘‘bride wealth,’’ which is theoretically intended to establish the woman’s financial independence.

In contemporary times, the
mahr
has assumed a more signifi t role for Muslim women who, due to greater access to education, have come to a better understanding of the theoretical signifi of this practice. Many women, devout and religiously nonobservant alike, have come to view the
mahr
as a sort of ‘‘divine protection’’ afforded to Muslim women centuries before secular laws offered financial protection to all women, particularly in the Western world. Undoubtedly, better educational levels have empowered many Muslim women to actively participate in the negotiation of the
mahr
amount. In addition, a better sense of individual rights has conferred upon them the power to negotiate, to their advantage, other conditions within the marriage contract. Islamic jurisprudence had always left these conditions open for negotiation in principle, except that only a few women could avail themselves of the practice because of their social, economic, and educational levels, or of their guardian’s open-mindedness and willingness to negotiate to their advantage.

MUT‘A
MARRIAGE: A TEMPORARY MARRIAGE CONTRACT

This form of marriage practice is limited in Islamic jurisprudence to the Twelver Shiites, the
Ithna ‘ashariyya,
who comprise the majority of the Shi‘a in contemporary Islam. Other Shiite groups, such as the Ismailis, considered this practice illegal.
Mut‘a
marriage is sometimes described as ‘‘marriage of limited duration’’ (
al-nikah al-muwaqqat
) or ‘‘discontinued marriage’’ (
al- nikah al-munqati‘
). Most often, it is understood as ‘‘temporary marriage.’’

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67

The Arabic dictionaries defi the term
mut‘a
as ‘‘enjoyment, pleasure, delight.’’ Thus, this marriage may also be understood as ‘‘marriage for the purpose of pleasure.’’ Both Shiite and Sunni authorities agree upon the fact that this form of marriage was practiced in early Islam. However, they disagree as to the reasons why it was permitted. They also disagree about whether it was to be continued beyond a certain time and circumstance, or whether it was meant to be abolished when circumstances changed. The Sunnis believe that the permission to practice
mut‘a
marriage was eventually abrogated. However, the Twelver Shi‘a, based on reports from their early Imams, believe that it was to be continued.

Although it is not as widely practiced as the normal Muslim marriage, Twelver Shiite jurisprudential works discuss
mut‘a
marriage with the same care and detail that they do for a ‘‘permanent marriage.’’ Thus, the founda- tional elements of this type of marriage are similar to those of any other marriage: both types of marriage rely on a prescribed formula for marriage, both share concern for the physical and psychological health of the individ- uals contracting the marriage, and both require the negotiation of
mahr,
‘‘bride wealth.’’ The most important difference between the
mut‘a
marriage and the normal Muslim marriage is that in a
mut‘a
marriage the duration (
mudda
) of the marriage must be specifi in the marriage contract. There is no lower limit to the duration of a
mut‘a
marriage. However, the upper limit is 99 years. For this reason, the duration of the marriage must be stipulated so that there is no room for ambiguity. The stipulated duration must be strictly adhered to.

It is permissible to add other conditions to the
mut‘a
contract so long as they are legitimate, such as the stipulation of particular meeting times, the number of sexual acts, and the expected time of the consummation of the temporary marriage. By consensus of the jurists, however, divorce is not allowed in a
mut‘a
marriage. The two parties separate after the end of the stipulated period, once the other stipulations of the marriage contract have been fulfilled. There are no further rights or obligations on the part of either party beyond what is clearly specifi in the contract. The
‘idda,
‘‘waiting period,’’ before a woman can marry again is two menstrual cycles in a
mut‘a
marriage. This is shorter than the waiting period of three menstrual cycles (usually equivalent to three months) that is required after the dissolution of a normal marriage. If the wife is pregnant at the time of separation, her wait- ing period is extended to the time it takes for her to give birth or to the end of her
‘idda
period, whichever is longer. In all cases, whether in a permanent marriage or in a temporary marriage, the waiting period is mandated in order to safeguard the legitimacy and rights of the child that may be born after the separation of the wife from the husband. The husband is obligated to provide for the child irrespective of the nature of the marriage.

Within the rules of
mut‘a
marriage, certain types of women are recom- mended for marriage, others are forbidden for a man to marry, and still

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others are considered reprehensible for the man contracting the temporary marriage. Some of these rules are as follows:

1. It is preferable to contract a
   mut‘a
   marriage with a free and chaste Muslim woman.
   

2. It is permissible to contract a
   mut‘a
   marriage with women from among the ‘‘People of the Book,’’ but one may not contract such a marriage with a poly- theist or with an enemy of the Household of the Prophet.
   1
   

3. A man may not contract a
   mut‘a
   marriage with the daughter of his permanent wife’s sister or brother without his permanent wife’s permission.
   

4. A man may not contract a
   mut‘a
   marriage with another person’s slave without her master’s permission and without his own permanent wife’s permission.
   

5. It is reprehensible, but not forbidden, to contract a
   mut‘a
   marriage with a woman of loose morals. If a man were to contract a temporary marriage with such a woman, it is his duty to command her not to have a sexual relationship with any other person during the stipulated time of their marriage.
   

6. It is reprehensible to contract a
   mut‘a
   marriage with a virgin. This would cause hardship to her family because it would make her less desirable for a permanent marriage. If a temporary marriage contract were somehow concluded with a virgin, the man is not permitted to consummate the marriage without her father’s permission. Such a condition is almost impossible to imagine in most Muslim societies.
   

The agreement between Shiite and Sunni authorities concerning the practice of
mut‘a
marriage during the Prophet’s lifetime confi the original sanction of this practice. Both groups agree that ‘Umar ibn al-Khattab, the second Caliph of Islam (r. 634–644
CE
), ordered the practice to be discontinued. This confi that the practice was continued after the Prophet Muhammad’s death, at least through the Caliphate of Abu Bakr (r. 632–634
CE
). The ensuing debate between Sunnis and Shiites about whether ‘Umar had the authority to discontinue the practice of
mut‘a
—and whether or not the Shiite Imams allowed the practice to continue—underscores the fact that, early on in Islamic history, there was a pliability of attitude with regard to the continuity or abrogation of certain practices in Islam.

MARRIAGE IN THE LAWS OF CONTEMPORARY MUSLIM COUNTRIES

The intrinsic capacity for evolution within Islamic law is illustrated by the contemporary efforts undertaken by Muslim states to revisit family law and enact legislation accommodating contemporary sensibilities. Most present- day Muslim countries have codifi their family laws primarily on the basis

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of a particular school of Islamic jurisprudence, to which a majority of their population adheres. Sometimes, however, the laws of a particular country combine the jurisprudence of one school with that of other schools.

Such combinations, when consistent and properly reasoned, are justifi

because of the Prophet Muhammad’s famous statement that difference of opinion among his community is a source of divine mercy. The Qur’anic verse emphasizing that Islam is a religion of ease, not of complications and diffi ulties, further strengthens the approach of combining codes from different schools. The North African country of Tunisia leads the way among the Muslim nations that have enacted the most far-reaching reforms in family law. The Tunisian Code of Personal Status, enacted in 1956, not only provides for a minimum age of marriage for women (now 17), but has also abolished polygyny and has abrogated the right of a guardian to contract a marriage without the woman’s consent. In effect, Tunisia, whose legal culture is based on Maliki jurisprudence, has abandoned the Maliki notion of guardianship altogether, at least as it pertains to marriage. The same is true of the requirement for ‘‘suffi y’’ or ‘‘suitability’’ (
kafa’a
).

The Personal Status Code of Syria (1953) modifies the position of Hanafi jurisprudence by limiting the guardian’s powers over the marriage of a daughter who has reached majority. The Moroccan Personal Status Code (1957) departs from the basic Maliki position by prohibiting the guardian from forcing marriage on a virgin ward who has attained majority. The Kingdom of Saudi Arabia and other Gulf states continue to follow an uncodifi system of family law. According to this system, individual cases do not constitute binding precedent since the system relies on the inde- pendent juridical reasoning and application (
ijtihad
) of the judge. Thus, it is possible that different judgments will be rendered in similar cases. Some countries such as Syria, Jordan, and Morocco have attempted to control marriage contracts between very young girls and much older men by setting limits on the age difference between the spouses. For example, in Jordan an 18-year-old woman cannot be married to someone more than 20 years her senior. However, in rural areas, lack of accurate documentation registering the birth of either party may invalidate the positive effects of such legislation.

All traditional schools of law interpret the Qur’an as permitting polygyny as long as certain conditions of fairness are observed. As noted earlier, the Tunisian Code explicitly prohibits polygyny. However, even within a tradi- tional framework, mechanisms exist to enable a woman to prevent or limit her prospective spouse from contracting multiple marriages. For example, in some schools of Islamic law, a woman may stipulate in her marriage contract that her husband may not take a second wife. However, the Shafi‘i and Shiite schools of law reject this provision on the basis that a contract may not forbid what is allowed in the Qur’an. Turkey remains the major

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exception among Muslim nations in that it abolished Muslim Family Law altogether. In 1926, the family law aspects of traditional jurisprudence were replaced by the Swiss Civil Code, which remains to this day the basis of Turkish Civil Law.

A number of contemporary scholars of Islam have contended that in actual practice, modern legislation regarding marriage and divorce has contributed very little to alleviating gender inequalities in Muslim societies. Rather than modifying the Shari‘a, in many cases modern legislation tends instead to codify it. For example, the requirement of court documentation for divorce cases assures the wife’s right to be informed about her husband’s petition for a divorce. In the past, in accordance with some interpretations of the law, she might not have been aware that her husband had divorced her. However, the mere fact of documentation does not restrict a husband’s right to divorce his wife without grounds. In addition, it is possible that in the pro- cess of codifying Shari‘a laws, modern legislation might also codify and strengthen traditional cultural attitudes that affirm men’s power over women and provide additional justification for perpetuating unfair gender practices. For example, if it is assumed, according to traditional norms, that women must make themselves available to their husbands at all times, then working women, simply by pursuing a career or working because of economic neces- sity, may provide grounds for divorce. Even worse, their supposed economic independence, even if paid a low salary, may render them ineligible for main- tenance during marriage or ineligible for child support after divorce.