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Tarim Yilpizi
27-02-06, 12:40
3. Ijbar: A Safety Valve

The consent of both the man and the women is an essential element of marriage, and the Qur'an gives women a substantial role in choosing their own life partners. It lays down:

Do not prevent them from marrying their husbands when they agree between themselves in a lawful manner. (2: 232)

However, Imam Malik, one of the four great Imams of the Sunni schools of Islamic jurisprudence, gives a slightly restrictive interpretation to this verse and makes the choice of partner by a Muslim girl subject to the over-ruling power or ijbar of her father or guardian in the interests of the girl herself.

It may sometimes happen that in her immaturity or over-zealousness, a girl may want to marry a man about whom she has distorted information or who does not possess good character or who lacks proper means of livelihood. In such a case, it is better, or rather incumbent upon the girl's father or guardian, that, in the wider interests of the girl, he restrains her from marrying such a worthless man and finds a suitable person to be her husband. Generally speaking, such marriages arranged by fathers and guardians work better than a marriage brought about through western courtship.

The case of Abu Juham bin Hudhaifah and Mu'awiyah ibn Abu Sufyan is relevant here. They proposed marriage to Fatimah bint Ghaith. The Prophet (peace be upon him) advised Fatimah not to marry either of them on the grounds that Mu'awiyah was then a pauper and Abu Juham was cruel and harsh. So she married Usamah.


4. The Free Consent of the Parties


The Qur'an (4:21) refers to marriage as a mithaq, i.e. a solemn covenant or agreement between husband and wife, and enjoins that it be put down in writing. Since no agreement can be reached between the parties unless they give their consent to it, marriage can be contracted only with the free consent of the two parties.

The Prophet (peace be upon him) said,

"The widow and the divorced woman shall not be married until their order is obtained, and the virgin shall not be married until her consent is obtained." (AlBukhari)

This aspect is greatly emphasized by Imam Bukhari. He, in fact, gave one of the chapters in his Sahih the significant title:
"When a man gives his daughter in marriage and she dislikes it, the marriage shall be annulled."
Once a virgin girl came to the Prophet (peace be upon him) and said that her father had married her to a man against her wishes. The Prophet gave her the right to repudiate the marriage. (Abu Dawud).
Divorced women are also given freedom to contract a second marriage. The Holy Qur'an says,

And when you divorce women, and they have come to the end of their waiting period, hinder them not from marrying other men if they have agreed with each other in a fair manner. (2: 232)

With regard to widows, the Qur'an says,

And if any of you die and leave behind wives, they bequeath thereby to their widows (the right to) one year's maintenance without their being obliged to leave (their husband's home), but if they leave (the residence) of their own accord, there is no blame on you for what they do with themselves in a lawful manner. (2:234)

Thus widows are also at liberty to re-marry, even within the period mentioned above; and if they do so they must forgo their claim to traditional maintenance during the remainder of the year. However, it must be remembered that the power of ijbar given to the a father or the guardian by the Maliki school over their selection of life- partner obtains in all the situations considered above, namely, whether the daughter or the ward is a virgin or divorcee or widow.



5. Prohibited Marriage Partners

Under the Shari'ah, marriages between men and women standing in a certain relationship to one another are prohibited. These prohibited degrees are either of a permanent nature or a temporary. The permanently prohibited degrees of marriage are laid down in the Holy Qur'an :

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. (4:22 - 24)

From the above verses, it is clear that a Muslim must never marry the following:
His mother
His step-mother (this practice continues in Yoruba land in Nigeria, where in some cases the eldest son inherits the youngest wife of his father)
His grandmother (including father's and mother's mothers and all preceding mothers e.g. great grandmothers )
His daughter (including granddaughters and beyond )
His sister (whether full, consanguine or uterine)
His father's sisters (including paternal grandfather's sisters)
His mother's sisters (including maternal grandmother's sisters)
His brother's daughters
His foster mother
His foster mother's sister
His sister's daughter
His foster sister
His wife's mother
His step-daughter (i.e. a daughter by a former husband of a woman he has married if the marriage has been consummated.)
His real son's wife

A great wisdom lies behind these prohibitions on the grounds of consanguinity, affinity, and fosterage. No social cohesion can exist if people do not keep these prohibitions in their minds while contracting marriages.

Temporary prohibitions are those which arise only on account of certain special circumstances in which the parties are placed. If the circumstances change, the prohibition also disappears. They are as follows:
A man must not have two sisters as wives at the same time nor can he marry a girl and her aunt at the same time.
A man must not marry a woman who is already married.
A man must not have more than four wives at one time. This impediment is, of course, removed as soon as one of the wives dies or is divorced.
A man must not marry a woman during her 'iddah.

Regarding this last prohibition, the Qur'an expects Muslims to act with the utmost propriety and righteousness. It lays down:

...but do not make a secret contract with them except in honorable terms, nor resolve on the tie of marriage till the term prescribed is fulfilled. (2:235)

This means that a man must not make a specific proposal of marriage to a woman during the time of her 'iddah after the death of her husband or an irrevocable divorce. However, he can send a message saying, for instance, "I wish to find a woman of good character". But if a woman is in the 'iddah of a divorce which is revocable where raja' (return) is possible, a man must not send her even an implied invitation to marry him, because she is still considered as the lawful wife of the first husband. In fact, this restriction is most beneficial because it prevents a man from becoming an instrument of breaking up a family where there are still chances of reconciliation between the wife and husband even though they are moving away from each other.



6. Two Suitors Seeking to Marry the Same Girl

The Prophet (peace be upon him) disapproved of two persons competing with one another to secure marriage with the same girl. This is because such a situation is likely to develop bitter enmity between two Muslim brothers. The Prophet said,

"A believer is a brother of a believer. Hence it is not lawful for him to bargain upon the bargain of a brother, nor propose for (the hand of a girl) after the marriage proposal of his brother, until the latter (voluntarily) withdraws the proposal."

Imam Abu Hanifa, Imam Shafi'i, and Imam Malik, all hold the view that it is a sin to put a proposal of marriage against the proposal of another Muslim brother. However, if a marriage is contracted in this wrongful way it will be sufficient if the second suitor who was successful seeks the forgiveness of the first suitor and of Allah. But Imam Dhahiri considers such a marriage void. It is respectfully submitted that the former view is more rational and sound.

We at Muslim Marriage Consultants hope that this information is useful to you. Inshallah, as you find that partner to complete your religion, and share your life with. Remember, a photo is the first tool you have to make an impression on a potential partner!