Muslim marriages are celebrated in accordance with the rites and observances of the Moslem faith, between persons professing the Moslem religion.
They are potentially polygamous.
All marriages in Uganda should be construed according to the constitution of Uganda 1995 and any other law created with the force of the constitution. In this analysis, the following provisions of the constitution and other laws should be considered:
i. Article 2(1) the constitution is the supreme law of Uganda and shall have binding force on all authorities and persons throughout Uganda; Article 2(2) states that if any other law or any custom is inconsistent with any of the provisions of the constitution, the constitution shall prevail, and that other law or custom shall, be void. Article 7 is to the effect that Uganda shall not adopt a state religion. Article29(1) (c) gives every person the right to practice any religion and manifest such practice which shall include the right to belong to and participate in the practices of any religious body or organization in a manner consistent with the constitution.
ii. Article 129(1) the judicial power of Uganda shall be exercised by the courts of Judicature which shall consist of such subordinate courts as Parliament may by law establish, including qadhis courts for marriage, divorce, inheritance of property and guardianship, as may be prescribed by Parliament.
REMEMBER:
Article 274 (1) subject to the provisions of this article, the operation of the existing law after the coming into force of this constitution shall not be affected by the coming into force of this constitution but the existing law shall be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring it into conformity with this constitution.
The aforementioned provision brings into play The Marriage and Divorce of Mohammedans Act cap 252, section 2 of which provides that; all marriages between persons professing the Mohammedan religion, and all divorces from such marriages celebrated or given according to the rights and observances of the Mohammedan religion customary and usual among the tribe or sect in which the marriage or divorce takes place shall be valid and registered as provided in this Act.
Marriage is a key component of the Muslim Personal law and a very important institution in Islam which is taken as an act of worship. In fact marriage is so important in the religion of Islam that it is declared to be one half of one`s total faith.
Consider the following Shari’a teachings:
1- Prophet Muhammad (PBUH), the mentor of Islam married and encouraged others to marry
2- It has been reported that the Prophet (PBUH) said;
“A person who possesses the means (i.e. he is able to work, to support a wife
and children) and does not marry is not from amongst us (the believers).”
3- He also says,
“No house has been built in Islam more beloved in the sight of Allah than through marriage.”
4- On another occasion the Prophet (PBUH) said,
“The best people of my nation (Ummat) are those who get married and have chosen their wives, and the worst people of my nation are those who have kept away from marriage and are passing their lives as bachelors.”
5- Further, Imam ‘Ali (A.S.) exhorts,
“Marry, because marriage is the tradition of the Prophet (PBUH)
6- The Prophet (PBUH) also said,
“Whosoever likes to follow my tradition, then he should know that marriage is from my tradition.”
The Holy Quran says;
“And marry those among you who are single and those who are fit among your male slaves and your female slaves; if they are needy, Allah will make them free from want out of His grace; and Allah is Ample-giving, Knowing.” (Surah an-Nur,24:32)
Therefore, according to the teachings of Islam, marriage is one of the recognized and indisputable commandments of Islam- the sacred union that takes place only between a man and a woman (Bhimji). It is a contract by which a man and a woman agree to live as husband and wife in accordance with the guidance contained in the two primary sources of the Sharia; the Qur`an and the Sunnah of the prophet (PBUH).
It is a pure and simple contract that needs neither writing nor sacred rites. All that is necessary is a proposal (Ijab) and acceptance (Qubul) and in the presence and hearing of two male or female witnesses. As a legal requirement however, recording the factum of marriage is done in the “Marriage” register maintained in every mosque. The certificate is signed by the couple and attested by their witnesses and the Imam/Kadhi.
Prohibitions
The Quran forbids Muslim men from marrying certain persons:
“And marry not those women whom your fathers married, except what has already happened (of that nature) in the past. Lo! It was ever lewdness and abomination, and an evil way. Forbidden unto you are your mothers and your daughters, and your sisters and your father’s sisters and your mother’s sisters, and your brother’s daughters and your sister’s daughters, and your foster-mothers and your foster-sisters, and your mothers-in-law and your step-daughters who are under your mother-in-law and your step-daughters who are under your protection (born) of your women unto whom you have gone into -- but if you have not gone into them, then it is no sin for you (to marry their daughters) -- and the wives of your sons from your own loins, and that you should have two sisters together, except what has already happened (of that nature) in the past. Allah is ever-Forgiving, Merciful.”(Quran 4:22-24)
From the above verses, it is clear that a Muslim man must never marry the following:
- His; mother, Step-mother, grandmother (including father’s and mother’s mothers and all preceding mothers’ e.g. great grandmothers), daughter (including granddaughters and beyond), sister (whether full, consanguine or uterine), father’s sisters (including paternal grandfather’s sisters), mother’s sisters (including maternal grandmother’s sisters), brother’s daughters, foster mother, foster mother’s sister, sister’s daughter, foster sister, wife’s mother, step-daughter (i.e. a daughter by a former husband of a woman he has married if the marriage has been consummated. However, if such a marriage was not consummated, there is no prohibition), his real son’s wife and wife’s sister.
- It is also prohibited for a Muslim woman to marry a non-Muslim man and more than one husband (polyandry), when the first marriage is still surviving. Further, when the marriage is dissolved by three pronouncements of divorce, reunion is prohibited except after the woman lawfully marries and divorces another man after consummation. Marriage with a sick man/woman; marriage with a person suffering from an incurable or fatal disease is invalid. If however, he recovers and the marriage is consummated, it is valid.
Exceptions:
There are however, a few exceptions to the general rule of prohibition on the ground of fosterage and a valid marriage maybe contracted with; a sister’s foster mother, or foster sister’s mother, or a foster son’s sister, or a foster brother’s sister.
Age of the parties
The Islamic law does not set a specific age for marriage; rather attainment of Puberty is the major consideration of age in determining the ability to marry. However, the age at which people attain puberty varies on the basis of different factors such as genes and the environment. Some boys reach puberty at 14 or 15years, while girls can attain it as early as 9, 10, 11or 12 years.
It should be noted that the above Islamic law on age notwithstanding, Article 31(1) of Uganda’s 1995 constitution provides that; a person who is capable of contracting a marriage is that one at the age of 18years. Therefore, the Islamic position on puberty as a consideration for age should be reconciled with the constitution and other laws since Uganda is not purely an Islamic country. For the Islamic position to apply, it should pass the test put in place by Article 2(2) of the 1995 Uganda constitution which states that if any other law or any custom is inconsistent with any of the provisions of the constitution, the constitution shall prevail, and that other law or custom shall, be void. Therefore age for marriage is 18 years of age.
Marriage Steps in Islam
As far as marriage is concerned, there are certain customs and traditions that Muslims observe in many Muslim countries and communities such as khitbah, nikah, rukhsati and walimah, et cetera.
What we are concerned about here is that Muslims should carry out such marriage-related customs according to the teachings of Islam and apply the teachings of Islam as explained in the Shari`ah.
In Islam, marriage can take several steps:
1- Khitbah: This is engagement whereby the man and woman decide to get engaged to marry at their convenient time. During this time, they and their families try to know each other. During the time of engagement, the couple is not married and they are not allowed to be alone with each other. It is forbidden for them to have intimate relations during this time. The parties can break the engagement without going through the process of divorce or talaq. They should return the engagement ring and other gifts, but this can be waived if there is mutual agreement and understanding.
2- Nikah: This is a formal, official and legal marriage. The nikah is performed by the Imam, the official religious authority, or any recognized person. It requires the presence of at least two witnesses, the mahr or the marital gift from the groom to his bride, the khutbah (sermon) of nikah to join the couple together in the Name of Allah.
After nikah, the couple becomes husband and wife. In case they want to break they have to have proper procedure of divorce or talaq. If the groom divorces, he has to pay the half of the mahr and return any gifts that he received from the bride’s family unless they do not want him to do so. There might be other marriage expenses and matters that they have to resolve with mutual agreement or through legal proceedings. The bride does not have to observe any `iddah or post-divorce waiting period if the marriage was not consummated.
Since the colonial days, Uganda has hosted an ethnic group of people known as Nubians, originating from the Nuba Mountains in Sudan. The traditions of these people are unbelievably fascinating. These are traditions so conserved that they are very unique. Numbering well over 10,000 in Uganda, Nubians are arguably the only tribe in Uganda that has all its members belonging to the Islamic faith. Indeed, their traditions are more or less in line with Islamic teachings.
A marriage in a Nubian setting is called the 'Nikah' (tying the knot) and it is conducted at a mosque or at the girl's home where it is presided over by a Sheikh (elder). It all begins with a boy and a girl agreeing to get married. Ordinarily, it is the boy that initiates the relationship, before the couple informs their parents. However, some conservative families still choose suitors for their daughters, ignoring the daughters' preferences. This is in relation to the Islamic belief that a parent should marry off their daughter in the best way they deem fit. This tradition is, however being challenged by western values which emphasize freedom of choice.
The boy's parents are supposed to get in touch with their counterparts on the girl's side to ask for her hand in the marriage on his behalf. Then, a visit to the girl's family by the boy's parents, intended to sort out the formalities for their children's marriage, follows. It is then that deliberations on the related terms and conditions are made. One of the items on the agenda of such a meeting is the gifts that will be received by the bride's family. Such items may include sugar, money, cooking oil, cloth and any other as may be demanded. Chandi Abdi, a Nubian who owns a media company in Kampala, says that it is common to find a special package of 'Kari' cigarettes for the older relatives of the bride among such gifts. He adds that in any Nubian marriage, the elderly are given priority in choosing gifts because they are highly respected and are believed to be capable of administering good luck.
Before the Nikah at the mosque, the groom gets a chance to talk to the bride. This session is known as the Mahare (bride gifting) and the groom is supposed to ask the bride what she would like him to give to her. She can ask for such items as cars, houses or opt for nothing but love. The essence of this ceremony is to get the couple committed to marriage, for they get a feeling of being indebted to each other. Chandi says that some Nubian girls use this opportunity to make the men commit themselves to a monogamous marriage by asking them not to marry other women as is allowed by Islamic tradition.
Because she has the liberty of choosing whatever items she deems necessary, the bride is expected to use this opportunity optimally and reach a consensus with the groom on the terms of fulfillment. When a man fails to commit himself to the delivery of the girl's demands, the marriage can be halted. He, however, has the opportunity to pay in parts or pledge his commitment but in case a divorce happens afterwards, the girl's family is expected to pay back the items that were given by the man as mahare.
The Nikah climaxes with the couple tying the knot, which cements the couple as man and wife. This ceremony cannot be done if the bride is pregnant - she has to wait until she has given birth. It is blessed by a Sheikh in the presence of witnesses. However, the bride does not make an appearance there and she is expected to stay in hiding until she is ready to go to the groom's home. She is represented at the Mosque by her brother or father, depending on who in her family has the right of giving her away.
She does not appear before the people at the Nikah because there is a need to protect her from temptations in case she sees other men who might easily lure her out of committing her life to the groom. The groom can take the bride home after the Nikah has been performed but she will be wrapped up, to ensure that no other person sees her until she has reached his home.
The first obligation a bride is expected to perform when she reaches her new home is to prepare a meal for her new family. It is referred to as 'testing the hand of the bride' and it is done to confirm her potential to make a responsible wife who can fend for her family. It is by this test that the family takes their impressions of the new bride. Muhamed Adikata, a Nubian elder living in the Kampala suburb of Namuwongo says that if the family is not impressed, there is a possibility that the bride will be sent back to her parents so that she can perfect her cooking skills.
The origin of Uganda's Nubians
Occupying areas of Acholi and some parts of northern Buganda such as Bombo, the Nubians are descendants of a group of Sudanese army personnel who were brought into the country by the colonial government. They originated from a region near the Nuba Mountains in Sudan, explaining why they are called Nubians. Their closest relatives in Uganda are the Acholi, who are directly related to the Madi. These are all historically eastern Sudanese tribes.
3- Rukhsati: Literally it means “sending off”. This term is used in Indio-Pakistan area. In Shari`ah, it is called “zifaf”. In Arab countries, it is commonly called “dukhul” or “dukhlah”. It means the consummation of marriage. Now, the spouses can be alone and can have their intimate conjugal relations. Rukhsati takes place after the nikah. After rukhsati, the spouses begin living together as husband and wife. In most cases the rukhsati takes place within a few hours after nikah, but sometimes families postpone the consummation of marriage or rukhsati for a later time. They may do it for various social or personal reasons. Sometimes, the consummation is delayed because the family wants to have a big party to invite many relatives and friends to celebrate their marriage. Sometimes, the couple decide to delay consummation because one or both spouses want to finish their studies or would like to make better arrangement for their residence, et cetera. There could be many reasons for the postponement of consummation and it could be for few months or years. This is permissible in Islam.
4- Walimah: This is a special feast to which the groom and his family invite their relatives and friends as well as the bride’s family and friends and they celebrate the marriage. Walimah is a Prophetic Sunnah that is highly recommended. It is a kind of formal announcement of the formation of this new family. In various countries, Muslims have different customs of walimah. It is not required to have the walimah after rukhsati. It can be done before rukhsati or at the time of rukhsati.
In some Muslim countries and communities there are some other customs, but these four are the most common Muslim traditions in marriage.
THE PRACTICAL PROCEDURE OF AN ISLAMIC MARRIAGE
The historical precedent of Prophet Adam (PBUH):
After his creation, he felt lonely and complained to the Almighty about his solitude. Allah put Adam (PBUH) to sleep and then created Hawwah (peace be upon her) with the utmost beauty, covered her with the robes of Paradise and brought her forth with other ornaments of beautification and instructed her (Hawwah) to sit near the head of Prophet Adam (PBUH). When Adam awakened from his sleep and his eyes fell on Hawwah (peace be upon her), he was so obsessed and captivated by her charm that he wanted to reach out and touch her. At this point, the Angels forbid him from doing so and he asked them, “did Allah not create her for me?” The Angels replied,
“Yes, but you have to approach her in the appropriate manner. First you must propose to her (by asking her guardian for permission to marry her), then you must grant her the Mahr (gift), followed by the recitation of the Aqd (marriage contract).” (Arifa Hudda p.1)
In order to offer guidance beyond the purely theoretical jurisprudence, we now describe particularly the practice at Uganda Muslim Supreme Council (UMSC), the umbrella organization of Sunni Muslims in Uganda. The practice is conducted as follows:
1. The first step of marriage in Islam is Engagement/Khitbah;
A Man has to discover a woman he loves first, and the woman has to reciprocate the love. Sometimes, parents or relatives take the trouble to identify suitable partners for their sons and daughters but the final decision rests with those to be married. As explained earlier, not even parents have the right to force their children especially daughters into marrying someone they do not love. The role of parents is to give parental advice and suggestions to what they think is best for their daughters. It’s highly recommended for sons and daughters to take the advice of their parents.
“There is no love greater than the love of the parents.”
2. After selecting the proper partner, there is an appointment scheduled for the two of them to meet (under chaperoned supervision) to discuss their possible future together.
3. After the initial meeting, they (couple) both pray to Allah a prayer/Salat known as “Salatul lstakharah” for guidance. Though highly recommended as something that would really help them in their future, failure to perform the salat however does not invalidate the marriage
4. If they both recognize positive signs from the “Salatul lstakharah” then they would proceed to make the “Nikah” (marriage contract). This, as earlier discussed is done under supervision with two witnesses. It is usually attended by an Imam or knowledgeable person in Islam, just so that there will be no mistakes in taking care of the details.
5. The wife to be is then asked to name her dowry which the husband is supposed to pay. Although the details of dowry have been explained in the previous section, it is important to emphasise that dowry is one of the essential elements of a nikah contract. The terms of the dowry are included in the nikah contract.
~ In the due course, the Mahr (dowry) is presented and the lady is asked if she is prepared to accept it and be married to the man.
According to Shariah, the wife-to-be says,
‘AnKah’tunafsakaa’lalmah’rilma’loom’, meaning “I have given away myself in marriage to you, on the agreed dowry”. Immediately, the man (bridegroom) says,
‘Qabiltun Nikaha’; “I have accepted the marriage.” With these pronouncements, they become husband and wife.
~ In the event that the marrying partners are unable to recite the formula in Arabic, one or two persons or Imams are appointed and authorized to officiate. One who represents the bride would first seek her explicit consent to officiate on her behalf, and so would the other who acts on behalf of the groom. Naturally, there would be a slight variation in the pronouncements, because the persons reciting them are appointees. A person who represents the bride would initiate by saying; “Ankah’tumuwakkilatimu wakkilakaa’lalmah’rilma’loom”. “I give away in Nikah the woman who has thus appointed and authorized me, to the man who has authorized you, on an agreed Mahr.”
The groom’s representative would respond,
“Qabiltunnikaahalimuwakkilia’lalmah’rilma’loom.”, “I accept the Nikah on behalf of the one who has appointed me, on the agreed Mahr.”
6. The parties then sign the Nikah document in front of the witnesses. It is highly recommended to recite a brief discourse or Khutba before the Nikah formula is enunciated. In this Khutba, Allah is praised for His Wisdom in regulating the lawful process of procreation, and then the traditions from the Prophet (PBUH) are also recited. (Sayyid Arthur).
a. The two witnesses also sign and attest that they have been present witnessed lady’s acceptance of the man’s offer of marriage. The Imam also signs. Any two adult Muslims may witness the document. In the case of women witnesses, it is correct to have two in place of one man. If there were to be two witnesses, but one is a woman, then it would be correct to have a man and two women sign the document.
7. After the lady’s acceptance, the signing of the Nikah (document) witnessing of the two witnesses and exchange of Mahr, the man and the women are considered legal in Islam to live together and be together as man and wife and to have sex. However, until they actually consummate the marriage (i.e. have intercourse) they may cancel the marriage, and the Mahr would be returned to the man.
~ After signing the marriage document, and the acceptance of the bride of the ‘Mahr’ (dowry), and the signing of the two witnesses, the groom is free to take his bride at anytime he chooses. As regards any kind of a deadline, this would be according to the contract. If the lady or the gentleman has specified that for whatever reasons, if they are not able to be living together by such and such a date, then the Mahr could be returned to the man and the couple would be considered unmarried (unless of course, they had consummated the marriage by having sex).
~ Due to the contemporary demands, a marriage certificate is provided to the couple
NOTE
If the groom is unable or unwilling to take the bride after an extended period of time and she or he would like to annul the marriage, they would simply let the other person know the cause and the Mahris returned to the groom.
CLASSES OF MARRIAGE CONTRACT
Islamic jurists (fuqaha) describe four classes of marriage contract:
1. Compulsory (Fardh) marriage contract:
Marriage becomes fardh when a person is unable to control their carnal desires and there is a fear that they may commit a major sin (fornication/zina) (Al-Qasmi, A. Y). This is where a person has all such resources that are generally necessary for a family life and is certain that along with the possession of these resources if he remains unmarried he will indulge in, then it is, compulsory for him to contract a marriage. If he does not contract marriage he will be sinful.
2. Unlawful (haram) marriage contract:
The contract of marriage is considered unlawful if it occurs under the two circumstances: when the necessary requirements of marital life do not exist and where an individual is certain that after marriage, he shall commit major sin. For example, a person is inclined (has deep secret interest) in a particular woman but he cannot marry her and if he contracts the marriage with someone else his inclination in the former remains, and he is certain that he would commit major sin(adultery) with the admired woman. In such a circumstance his contracting a marriage with this second woman is unlawful.
3. Disliked (Makruh) marriage contract
This occurs where a person has a probability that after his marriage he shall not do justice to his wife or he has the probability that he would commit adultery after such marriage.
4. Sunnah (acting in accordance to Prophet Muhammad’s (PBUH) practice).
This occurs when all the requirements of a marital life are available, for example a man is adult, of sound mind, and there is no element of any injustice with the wife. There is a saying of the Prophet Muhammad (PBUH); “To contract a marriage is my way.”
WHAT ARE THE REQUIREMENTS FOR AN ISLAMIC MARRIAGE?
The solemnization of a marriage requires adherence to certain conditions. They are called the essentials of a valid marriage. If any of these requirements is not fulfilled the marriage becomes either void or irregular, as the case maybe. The essentials are as follows;
1. Capacity of the prospective husband and wife.
The parties to a marriage must have the capacity and competence of entering into a contract. A Muslim who is of sound mind and who has attained puberty may enter into a contract of marriage; the parties must be able to understand the nature of their act.
2. Consent of both parties (bride and groom)
· The consent of both the man and woman is an essential element of marriage, on the basis of the definition of marriage as ‘the voluntary union of two people. The Holy Quran lays down expressly that both man and woman must agree.
· Usually, there is an offer of marriage (proposal) from the man (sometimes a woman) and acceptance by the other party (Nasir, J, 1990). A marriage can only be contracted with the free consent of the two parties. No woman whether virgin or previously married can be forced to marry a particular man without her consent.
· In case of a virgin it is the duty of the father or the guardian to consult her and seek her consent even if it is indicated by her silence. In case of a woman previously married whether widow or divorcee she is given more right to express her consent than that of her guardian. She must express her consent in words. Verily, the prophet (PBUH) did revoke the marriage of a girl who complained to him that her father had married her against her wishes (Islam Awareness).
3. Consent of guardian (wali/Vakil)
The Holy Quran (4:25) commands;
“so marry them with their guardian’s permission.....”
A Guardian is a person from the side of the female who performs the functions of offer on behalf of the female. It is the bride’s father, or brother in the absence of the father. Indeed, Aisha, the wife of the prophet (PBUH) quotes him saying,
“There can be no marriage without a guardian, and two honest witnesses. If there is any dispute between them, the ruler is the guardian of the person who has no guardian.” (Nasir, 1990)
4. Dowry /Mahr
This is an obligatory gift given by the groom to the bride on the occasion of the marriage (Quran 4:4). It may be given on the day of the marriage, before or even after, depending on the mutual consent between both parties. Although there is no specification in the Qur’an as to what or how much the Mahr has to be, the bride determines how much and in which form it takes but is urged to be considerate.
· From practice of precedent marriages, Mahr varies on the basis of the social status of the parties, their wealth, their personal qualification and the condition of the human society. To this end, the Quran
(2:236) provides:
“the rich according to his means and the strained according to his means.”
· The Quran (4:4) elaborates further;
“You shall give the women their due dowries as a free gift equitably, but if they themselves be pleased to give up to you a portion of it, then eat it with enjoyment and with wholesome result.” (Surah an-Nisaa’, 4:4)
· However, anything which cannot be owned, bought or sold by a Muslim cannot be Mahr in Islam. Islam recommends moderation and not setting a rate that is too high or too low. Prophet Muhammad (P.B.U.H) encourages the Muslims to simplify the giving of the dowry and said that;
“The best woman is the one whose dowry is the easiest to pay.”
· Nevertheless, the husband is allowed to give the wife a dowry of high value provided that he is willing and can afford it.
NOTE
~ Critiques have misinterpreted Islamic dowry for bride price as practiced in African tradition. The two are however totally different since bride price is paid to the bride’s parents or relatives for consent of her hand in marriage. The type and quantum of bride price is usually determined by the bride’s parents on the basis of cultural norms and varies from place to place. On the other hand, dowry is paid to the wife and it is her own personal property to make her content on the right of her husband’s guardianship over her (At-Tuwaijiry, 2000).
~ Dowry reflects the love and willingness of the husband to live with the wife, and to sacrifice for the welfare of his family. It is also a sign of respect from the husband to the wife.
~ If the parties agree that dowry is to be paid after a certain time after entering into a marriage contract, and a husband forfeits to clear the dowry within that time and the wife does not extend the time, she is advised to voluntarily (without coercion) reduce on the value/ amount of dowry or forgive the husband from paying the dowry. She however has the right not to do any of the above in which case the marriage becomes void on that ground at the request of the wife.
~ In the event that the groom dies after the contract of marriage has been entered but before paying the full dowry, the dowry should be included as a debt to be recovered by the wife.
5. Marriage should be publicized
· According to Islam, marriage should never be kept secret as it leads to suspicion and troubles within the community (Jannah.org). Secret marriages whilst recognised are severely disliked in Islam and even Harram when it goes against the will of the parents.
· Islam encourages the intending couple to invite other people to witness the celebration of their marriage. This however does not suggest making the marriage too expensive and unaffordable but just declaring to the public, that the two souls have united. Dinner (Valima) is highly recommended on the groom.
· The relatives, neighbours and friends must be invited for the dinner but lavish spending is not advisable especially when the same money can be used effectively by the couple (Sayyid A. H).
Marriage through an Agent
• Islam also allows to contract marriage through an agent. All the formalities are almost the same except that the agent cannot consummate the marriage. The agent must perform his duties according to the principles of agency and must be a person of good characters.
• There must be sufficient reasons for the non-appearance of any of the spouse and there must be proper communication to the other party and those witnessing the marriage. Proper identities of the couple should be established at the time of marriage.
MATRIMONIAL RIGHTS AND DUTIES
As per the teachings of the Quran and Hadith, a married couple bears rights and obligations towards upholding the marriage and subsequent family. The Shari’ah prescribes rules to regulate the functioning of the family so that both spouses can live together in love, security, and tranquility. Some of the rights and duties are bound to both parties while others are by one party towards the other as discussed below.
Mutual rights and obligations
These include:
i. Preservation of chastity and security of gaze. Both husband and wife should be faithful towards each other and have mutual respect for each other.
ii. Love, care, and companionship inside and outside the home. By signing the Islamic marriage contract, couples commit to nurturing an environment of love and mercy that is conducive to Islamic growth (Al khateeb 2004).
iii. Procreation and raising children by mutual consultation.
iv. Working collectively towards the social economic welfare of the family.
v. Mainstreaming social contacts with the family, meaning their individual roles inside the family.
vi. Emotional and sexual gratification. Both husband and wife are duty bound to satisfy each other’s sexual desires. This is such a serious obligation of marriage that prolonged refusal/denial without sound justification is a recognised ground for divorce by either partner.
vii. It is important for both the husband and the wife to make themselves physically attractive for each other. Islamic teachings instruct husband and wife to maintain cleanliness and beauty for the spouse. The prophet (PBUH) said;
“Certainly Allah is Beauty and He (only) loves beauty and He loves to see the effects of (His) blessings and bounties on His servants” (Hudda A)
Obligations of the husband
In addition to the mutual obligations above, the husband:
i. Is the head of the family and should make the final decision upon consulting and listening to other family members especially his wife (Quran 4:34). While Islam gives the husband leadership role in the marriage relationship, this does not mean that he can run the family life like a dictator. Allah instructs in the Quran that:
Men are the maintainers of women because Allah has made some of them to excel others and because they spend out of their property; the good women are therefore obedient, guarding the unseen as Allah has guarded. (4:34)
NOTE
· You might have realized that a major cause of many marital problems is the issue of ‘who is in control in the relationship.’ This hasled to a stalemate in disagreements, as well as bitter feelings. Many couples today are refusing to compromise within moderation when differences arise.
· It should be noted that in Islam, a leader is one who serves, manages, provides and nourishes. A leader must also have humbleness and humility and deal with all of those under his care and protection with justice and equality. Thus a husband exercises the right kind of leadership by listening to and consulting with his wife. He is bound to follow the rules of the Quran and Sunnah of the Prophet (PBUH), instead of becoming a source of tension and problems in the home. Thus, as a leader and protector, the husband should never: abuse his spouse and children verbally, emotionally, physically or sexually.
ii. The husband should sustain his family by providing all the basic needs such as food, shelter and clothing. If he fails to provide such for her, the wife has the right to complain to the Qadhi or Imam. Certainly, the Quran highlights this duty in Suratul (chapter) Baqarah (2:233):
“...The duty of feeding, clothing and the nursing of the mother in a seemly manner is upon the father of the child.”
iii. It is also the duty of the husband to protect himself and his family from the hell fire by guiding them into righteousness as Allah emphasizes in the Quran (66: 6):
O you who have true faith! Save yourselves and your families from the fire which is fueled by people and stones and is guarded by stern angels who do not disobey Allah’s commands and do whatever they are ordered to do
Therefore, as the head of the house the husband is duty bound to get the proper Islamic knowledge to keep himself away from the hell and more importantly, guide his wife and children to the straight path and keep them on this road. In this regard, the husband has four important duties:
a. To invite his wife and children and any others under his care to obey Allah. The husband should call his family to follow the religion and encourage them in this regard.
b. Teach those under his care their religious duties and obligations. This means that the husband must have knowledge of his own religion and beliefs. If he is not well acquainted with his religion, then he must employ the services of the local mosque and the scholars and either invite them to his house or go to the mosque for Islamic classes.
c. Encourage the family members to perform good deeds. If they know their responsibilities and are continuously guided to them, then peace, harmony and tranquility will rule throughout the house.
d. The father must also make sure and remind other members of his family to stay away from evil and sin. A home in which people are not plagued with committing sins and evil acts is one in which Allah looks favourable upon and blesses its inhabitants.
Obligations of the wife
The prophet (PBUH) said,
If bowing (sajdah) before anyone besides Allah was permissible, the wife would have been commanded to make sajdah to her husband (Tirmidhi).
The above words of the prophet portray the level of respect and love a wife should have and express for her husband. In the same direction, the Quran emphasises in chapter 30, verse 21 (30:21) that a wife should obey, respect and serve her husband all the time. Islam recommends thus, a wife;
i. Should never leave her husband’s house without his permission.
ii. Must look after her husband’s possessions during his absence from home. In his Farewell Sermon, Prophet Muhammad (PBUH) discouraged misappropriation of husband’s property.
He said:
No woman shall spend anything from the house of her husband without her husband’s permission,
He was asked: 0h Messenger of Allah! Nor food?
He replied: That is the best of our properties.
Thus, it is unlawful for wives to spend anything from their husband’s house without permission. But if they are sure that the husband will not be displeased with what is spent or given in alms or their implied permission can be gathered, it can be spent lawfully.
In cases where the husband is ‘a miser fellow’, the Shar’iah permits wives to spend on food and cloth as are necessary for them and their children according to means. Women cannot however, waste things or sell them privately without knowledge of the husband.
In Hadith narrated by Abdollah bin Abbas, the Holy prophet said that a woman who steals and acts dishonestly towards her husband’s property is cursed by seventy thousand angels.
One would ask what would happen to man who steals and acts dishonestly towards his wife. Islam also prohibits strongly a man who acts dishonestly towards his wife’s property.
iii. Should neither speak to any man who is not forbidden to her unnecessarily, nor should she let any such a man into her house in the absence of her husband.
iv. Ought to understand her husband’s nature and try to accommodate his temperament. Thus she should keep her marriage affairs a secret between her and her husband
In addition to the mutual obligations, the wife must not;
i. Abuse her husband and children verbally, emotionally, physically or sexually
ii. Desert her husband for 60 days unless with consent
iii. Sexually transmit diseases to her husband, etc
THE ISSUE OF EQUALITY (AL-KAFA’AT) AMONG SPOUSES
· Equality and rights of spouses in marriage is one of the driving forces behind domestic violence (Ahmed B. M. D, 2009). Fortunately, the Qur’an represents a comprehensive model to protect the human family from any type of oppression. According to Islam, God created human beings, men and women, as equal with the sole purpose of worshipping and serving Him. This aspect is clearly highlighted in the Qur’an;
“Behold. Thy Lord said to the angels. ‘I will create a vicegerent (trustee) on earth.’” (Qur’an 2:30).
· The only aspect by which one person is deemed better than another in the sight of God is that of piety:
“O mankind! We created you from a single pair of a male and a female, and made you into nations and tribes, that you may know each other (not that you may despise each other). Verily, the most honoured of you in the sight of God is the most righteous of you..” (Qur’an 49:13).
· That Islam demands much respect and obedience from a wife towards her husband notwithstanding, it is necessary that in certain matters there must be equality among the spouses. The reason for the existence of such likeness is that individuals living in a like environment become acquainted with each other within no time: Their problems are common; their needs and difficulties are similar; if there is a difference of way of living and of the belief there is apprehension of dislike and detachment as against love and attachment. In such a situation the engagements of the husband are often totally different from the wife’s. Requirements of a wife may be beyond her husband’s capacity. Hence, to hope to lead a good and pure life in such a non-resembling wedlock is the most difficult thing.
· This nonexistence of likeness even adversely affects the children born of such wedlock. Hence, Muslim jurists are of the view that there must exist likeness among the spouses in certain matters and hence advocate for marriages of the people of the same social status. Some countries have included in their Islamic family law legislation, provisions encouraging people to marry people of the same social status. However, this practice has been criticized as promoting discrimination on the basis of social class and promoting a caste system that might violate the constitutional rights.
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