The relation between man and woman becomes lawful by contracting marriage. There are two kinds of marriage:
(i) Permanent marriage
(ii) Fixed-time (temporary) marriage
In a permanent marriage, the period of matrimony is not fixed, and it is forever. The woman with whom such a marriage is concluded is called Da'imah (i.e. a permanent wife).
In a fixed time marriage, the period of matrimony is fixed, for example, matrimonial relation is contracted with a woman for an hour, or a day, or a month, or a year, or more. However, the period fixed for the marriage, should not exceed the span of normal lives of the spouses, otherwise the marriage contract will be void. The woman with whom such a marriage is concluded is called -Mut`ah- or Munqati`ah.
1112. Whether marriage is permenent or temporary, the formal formula must be pronouncesd; mere tacit approval and consent, or written agreement, is not sufficient. And the formule (Sighah) of the marriage contract is pronounced either by the man and the woman themselves, or by a person who is appointed by them as their representatives to recite it on their behalf.
1113. The representative should not necessarily be a male. A woman can also become a representative to pronounce the marriage formula.
1114. As long as the woman and the man are not certain that thier representative has pronounced the formula, they cannot look at each other as mah ran (like husband and wife) and a more probable suspicion that the representative might have pronounced the formule is not sufficient. And if the representative says that he has pronounced the formula, but his assertion does not satisfy the parties concerned, as an obligatory precaution, it will not be deemed sufficient.
1115. One person can act as the representative of both sides for reciting the formula of permanent or temporary marriage. It is also permissible that a man may himself become the representative of a woman and contract permanent or temporary marriage with her.
The Method of Pronouncing the Marriage Formula
1116. If a woman and a man themselves want to recite the formula of permanent marriage, after determining ?idaq (marriage settlement or Mahr), the woman shuold first say: Zawwajtuka nafsi `alas-?idaq-il-ma`lum (i.e. I have made myself your wife on the agreed Mahr), and then the man should immediately respond thus: Qabilt-ut-tazwij (i.e. I accept the marriage). In this way, the marriage contract will be in order. And if a woman and a man appoint other persons to act as their representatives for pronouncing the formula of marriage, and if, for example, the name of the man is Ahmad and that of the woman is Fatimah, the representative of the woman should first say: -Zawwajtu muwakkilaka Ahmad muwakkilati Fatimah `alas-?idaq-il-ma`lum” - (i.e. I have given to your client Ahmad in marriage my client Fatimah on the agreed Mahr) and thereafter the representative of the man should immediately respond thus: ~Qabilt-ut-tazwija li-muwakkili Ahmad alas-Sidaq-il-malum” (that is, I accepted this matrimonial alliance for my cliently Ahmad on the agreed Mahr). Now the marriage contract is in order. And, on the basis of recommended precaution, it is necessary that the words uttered by the man should conform with those uttered by the woman; for example, if the woman says, “Zawwajtuka… ( i.e. I have made myself your wife…) the man should also say, “Qabilt-ut-tazwija… ( i.e. Iaccept the matrimonial alliance…) and not “Qabilt-un-nikaha…
1117. It is permissible for a man and a woman to recite the formula of the temporary marriage, after having agreed on the period of maniage and the amount of Mahr. Hence, if the woman says: “Zawwajtuka nafsi fil-muddat-il-ma`lumati `al-al-mahr-il-ma`lum”. (i.e. I have made myself your wife for an agreed period and agreed Mahr), and then the man immediately responds thus: ~Qabiltu” (i.e. I have accepted), the marriage will be in order. And the marriage will also be in order if they appoint other persons to act as their representatives. First, the representative of the woman should say to the representative of the man thus: “Zawwajtu muwakkilati muwakkilaka fil-muddat-il-ma`lumati `al-al-mahr-il-ma`lum” (i.e. I have given my client to your client in marriage for the agreed period and the agreed Mahr), and then the representative of the man should immediately respond thus: “Qabilt-ut-tazwija il-muwakkili hakadha” (i.e. I accepted this matrimonial alliance for my client this way).
Conditions for Marriage Contract
1118. There are certain conditions for reciting the marriage formula. They are as follows:
(i) On the basis of precaution, the formula marriage contract (sighah should be pronouced in correct Arabic. And if the man and the woman cannot pronounce the formula in correct Arabic, they can pronounce, it in any other language, and it is not necessary to appoint any representatives. But the words used in translation must convey strictly the meaning of “Zawwajtu” and “Qabiltu”.
(ii) The man and the woman or their representatives, who recite the Sighah, should have the intention of Insha' (i.e. reciting it in a creative sense, making it effective immediately). In other words, if the man and the woman themselves pronounce the formule, the intention of the woman by saying, “Zawwajtuka nafsi”, should be that she effectively makes herself the wife of the man; and by saying, “Qabilt-ut-tazwija”, the man effectively accepts her as his wife. And if the representatives of the man and the woman pronounce the Sighah, their intention by saying, “Zawwajtu”, and “Qabiltu”, should be that the man and the woman who have appointed them as their representatives, have effectively become husband and wife.
(iii) The person who pronounces the Sighah (whether he pronounces it for himself or has been engaged by some other person as his representative) should be sane, and he should be Bàligh also, if he pronounces it for himself. And as a precaution the formula pronounced by a minor who is discerning for another person is not sufficient, and if he pronounced, they should be devorced or the formule should be uttered again.
(iv) If the Sighah is pronounced by the representatives or the guardians of the man and the woman, they should identify the man and the woman by uttering their names or making intelligible signs towards them. Hence, if a person has more than one daughters, and he says to a man, “Zawwajtuka ihda banati” (i.e. I have given away one of my daughters to you as your wife), and the man says, “Qabiltu” (i.e. I have accepted), the marriage contract is void, because the daughter has not been identified.
(v) The woman and the man should be willing to enter into a matrimonial alliance. If, however, they ostensibly display hesitation while giving their consent, but it is known that in their heart, they are agreeable to the marriage, the marriage is in order.
1119. If, while reciting the Sighah, even one word is pronounced incorrectly, as a result of which its meaning is changed, the marriage contract would be void.<
1120. If a girl who has reached the age of Bulugh and is virgin and mature (i.e. she can decide what is in her own interest) wishes to marry, she should, obtain permission from her father or paternal grandfather, although, as a precaution, she may be looking after her own affairs. it is not, however, necessary for her to obtain permission from her mother or pother.
1121. In the following situations, it will not be necessary for a woman to seek the permission of her father or paternal grandfather, before getting married:
(i) If she is not a virgin.
(ii) If she is a virgin, but her father or paternal grandfather refuse to grant permission to her for marrying a man who is compatible to her in the eyes, of shariah, as wellas custom.
(iii) If the father and the grandfather are not in any way willing to participate in the marrinage.
(iv) If they are not in a capacity to give their consent, like in the case of mental illness etc.
(v) If it is not possible to obtain their permission becouse of their absence, or such other reasons, and the woman is eager to get married urgently.
Occasions When Husband or Wife Can Nullify the Marriage Contract
1122. If the husband comes to know after the marriage contract that his wife had, at the time of the contract, any one of the following six deficiencies, he can annul the marriage.
(i) Insanity, even if it is intermittent.
(v) Being crippled, even if it is not to the extent of immobility.
(vi) Presence of flesh or a bone in the woman's uterus, which may or may not obstruct sexual intercourse or pregnancy. And if the husband finds that the wife at the time of the marriage contract, suffered from Ifda meaning that her urinary duct and menstrual passage, or her menstrual passage and rectum have been one, his being able to annul the marriage is a matter of Ishkal, and as an obligatory precaution, he will have to pronounce the formula of divorce if he wants to dissolve the marriage.
1123. A woman can annul the marriage contract in the following cases, without obtaining divorce:
(i) If she comes to know that her husband has no male organ.
(ii) If she finds that his penis has been cut off before or after the sexual intercourse.
(iii) If he suffers from a disease which disables him from sexual intercourse, even if that disease was contracted after the marriage contract and before or after the sexual intercourse.
In the following situations as an obligatory precaution, the woman should not annul the marriage, and if she did so, the precaution is to contract marriage again if they want to continue with the matrimony, and if they want to part, the formula of divorce should be pronounced:
(i) If she comes to know after the marriage contract, that the husband was insane at the time of the contract; or if he becomes insane after the contract, before or after consummation of the marriage.
(ii) If she finds out that at the time of the marriage contract the husband had been castrated.
(iii) If she learns that he suffered at the time of the marriage contract from lepsory or vitilgo, or blindness.
In the case when the husband is incapable of sexual intercourse, and she wishes to annul the marriage, it will be necessary for her to approach the Mujtahid or his representative, who may allow the husband a period of one year, and if it is found that he was not able to have sexual intercourse with her or with any other woman, the wife can annul the marriage.
1124. If the wife annuls the marriage because of the husband's inability to have sexual intercourse, the husband should give her half of her Mahr. But, if the man or the wife annuls the marriage because of one of the other deficiencies enumerated above, and if the marriage has not been consummated, he will not be liable for any thirig. Butif the marriage was consummated, he should pay her full Mahr.
1125. If a man or woman is described to another better than he/she is, in order to interest the other person in the marriage, either the description is made during the marriage contract or before it, and it is known after the contract that it has not been true, the other can annul the marriage, provided that the marriage has occured based on that description. This rule is explained in defail in other books like Minhaj-us-salihin.
Women with Whom Matrimony is Forbidden
1126. Matrimonial relation is Halal (allowed) with women who are one's Maa*ram, for instance, mother, sister, daughter, paternal aunt, maternal aunt, niece (one's pother's or sister's daughter) and mother-in-law.
1127. If a man marries a woman, then her mother, her maternal grandmother, her paternal grandmother and all the women as the line ascends are his Maa*ram, even if he may not have sexual intercourse with the wife.
1128. If a person marries a woman and has sexual intercourse with her, the daughters and grand-daughters (daughters of sons, or of daughters) of the wife and their descendants, as the line goes low, become his Maa*ram, irrespective of whether they existed at the time of his marriage, or were born later.
1129. If a man marries a woman but does not have sexual intercourse with her, the obligatory precaution is that as long as their marriage lasts, he should not marry her daughter.
1130. The parternal and maternal aunt of a man, and the parternal and maternal aunt of his father, and the parternal and maternal aunt of his paternal grandfather and grandmother, and the paternal and maternal aunt of his mother, and the paternal and maternal aunt of his maternal grandmother and grandfather, as the line ascends, are all his Mahram
1131. The husband's father and grandfather, however high, are the wife's Mahram Similarly the husband's sons and the grandsons (son of his sons or of daughters), however low, are her Maa*ram, regardless of whether they existed at the time of her marriage or were born afterwards.
1132. If a man marries a woman (whether the marriage be permanent or temporary) he cannot marry her sister, as long as she is his wife.
1133. If a person gives a recovable divorce to his wife, in the manner which will be explained under the rules relaiting to divorce, he cannot marry her sister during the Iddah. But if it is an irrevocable divorce, he can marry her sister. And if it is the Iddah of temporary marriage, the obligatory precaution is that one should not marry her sister during that period.
1134. A man cannot marry the niece (pother's or sister's daughter) of his wife without the wife's permission. But if he marries her nieces without his wife's permission and she later consents to the marriage, it will be in order.
1135. If the wife learns that her husband has married her niece (pother's daughter or sister's daughter) and keeps quiet, and if she later consents to that marriage, it will be in order. But if she does consent later, the marriage will be void.
1136. If before marrying his maternal or paternal aunt's daughter, a person commits incest (sexual intercourse) with her mother, he cannot marry that girl on the basis of precaution. But if he commits fornication with another woman, her daughter will not become Halal (allowed) for him, however, the recommended precaution is not to marry her.
1137. A Muslim woman cannot marry a non-Muslim, and a male Muslim also cannot marry a non-Muslim woman who is not Ahl-ul-Kitab (follower of the Divine Book). However, there is no harm in contracting temporary marriage with Ahl-ul-Kitab like Jewish and Christain women, but the obligatory precaution is that a Muslim should not take them in permanent marriage. As an obligatory precaution, a Muslim man should not marry a Magian woman, even if temporarily.
1138. If a person commits fornication with a woman who is in the Iddah of her revocable divorce, as a precaution that woman becomes Halal (allowed) for him. And if he commits fornication with a woman who is in the Iddah of temporary marriage, or of irrevocable divorce, or in the Iddah of death, he can marry her afterwards. The meaning of revocable divorce and irrevocable divorce, and Iddah of temporary marriage, and Iddah of death, will be explained in the rules relating to divorce.
1139. If a person commits fornication with a husbandlees woman and who is not in Iddah, as a precaution, he cannot marry her till he has sought forgiveness from Allah, and repented. But if another person wishes to marry her before she has repented, there is no objection. If a woman is commonly known as a fornicatress, it will not be permissible, as a precaution, to marry her till she has genuinely repented, and similarly, it is not permissible to marry a man commonly known as a fornicator, till he has genuinely repented. If a man wishes to marry a fornicatress woman, he should, as a recommended precaution, wait till she menstruates, irrespective of whether he had committed fornication with her, or anyone else had done so.
1140. If a person contracts marriage with a woman who is in the, Iddah of another man, and if both the man and the woman or any one of them knows that the Iddah of the woman has not yet come to an end, and if they also know that marrying a woman during her Iddah is Halal (allowed), that woman will become Halal (allowed) for the man forever, even if after the marriage contract the man may not have had sexual intercourse with her. And if both of them are ignorant about the rule of Iddah, or about being Halal (allowed) to marry during Iddah, the marriage contract is void. Then if they had sexual intercourse they become Halal (allowed) to each other for ever. Otherwise they do not become Halal (allowed) and they can marry again after the completion of Iddah.
1141. If a person marries a woman knowing that she has a husband, he should get separated from her, and should also not marry her at any time afterwards. And the same rule will apply, as a precaution, if he did not know that the woman had a husband, and had sexual intercourse with her afetr the contract.
1142. If a married woman commits adultery, she, on the basis of precaution, becomes Halal (allowed) permanently for the adulterer, but does not become Halal (allowed) for her husband. And if she does not repent, and persists in her action (i.e. continues to commit adultery), it will be better that her husband divorces her, though he should pay her Mahr.
1143. In the case of the woman who has been divorced, or a woman who contracted a temporary marriage and her husband forgoes the remaining period of marriage, or if the period of the temporary marriage ends, if she marries after some time, and then doubts whether at the time of her second marriage, the Iddah of her first husband had ended or not, she should ignore her doubt.
1144. If a Bàligh person commits sodomy with a boy, the mother, sister and daughter of the boy become Halal (allowed) for him, even if the penetration is less than the limit of circumcision. And the same law applies, as an obligatory precaution, when the person on whom sodomy is committed is an adult male, or when the person committing sodomy is non-Bàligh. But if one suspects or doubts whether penetration occurred or not, then the said women would not become Halal (allowed). Also mother, sister and daughter of the person committing sodomy are not Halal (allowed) for the person on whom sodomy is committed.
1145. If a person marries the mother, daughter, or sister of a boy or man, and commits sodomy with the boy or man after the marriage, as a precaution, they will become Halal (allowed) for him.
1146. If a man does not perform Tawaf-un-nisa (which is one of the acts to be performed during A*ajj and Umrat-ul-mufradah) his wife and other women become Halal (allowed) for him. Also, if a woman does not perform Tawaf-un-nisa, her husband and other men become Halal (allowed) for her. But, if they (man or woman) perform Tawaf-un-nisa later, they becomeHalal (allowed). If a person who did not perform Tawaf-un-nisa marries, his or her marriage will be in order, provided that he or she has completed the Ihram after performing Halq or Taqsir.
1147. If a person contracts Nikàa* with a non-Bàligh girl, it is Halal (allowed) to have sexual intercourse before she has completed her nine years. But if he commits sexual intercourse with her, she will not be Halal (allowed) for him when she becomes Bàligh, even if she may have suffered Ifda (which has been described in rule 1132), but in this case he should pay its Diyah, which is equal to that of killing a human, and pay her maintenance for ever, even after her divorce and even if she marries another person after the divorce.
1148. A woman who is divorced three times, between which to returns or marriage contract has occured, becomes Halal (allowed) for her husband. But, if she marries another man, subject to the conditions which will be mentioned under the rules pertaining to divorce, her first husband can marry her again after her second husband dies, or divorces her, and she completes the period of Iddah.<
Rules Regarding Permanent Marriage
1149. For a woman with whom permanent marriage is contracted, it is Halal (allowed) to go out of the house without the permission of her husband, though her leaving may not violate the rights of the husband, except when helpless or when staying in the house has a difficulty for her or the house does not fit her. Also she should submit herself to his sexual desires, and should not prevent him from having sexual intercourse with her, without justifiable sexuse. And as long as she does not fail in her duties, it is obligatory on the husband to provide for her food, clothes and housing. And if he does not provide the same, regadless of whe ther he is able to provide them or not, he remains indebted to the wife. Also of the wife's rights is that the husband should not annoy or hurt her, and should not treat harshly or be rude with her, without justifiable excuse.
1150. If the wife does not fulfil her matrimonial duties towards her husband, she will not be entitled for the food, clothes or housing, even if she continues to live with him. But if she refuses to obey occasionally, the obligatory precaution is that she is entitled for the food etc., but in the case of refusing sexual intercourse, there is no doubt that she does not forfeit her Mahr.
1151. Man has no right to comple his wife to render household services.
1152. The expenses in a journey incurred by the wife must be borne by the husband, if she had travelled with the husband's permission, even if these expenses exceed her expenses at home. But the fares for travel by car or by air etc., and other expenses, which are necessary for a journey, will be borne by the wife, except when the husband is himself inclined to take her along with him on a journey, in which case he will bear her expenses also, and this applies also when the journey is necessary like a journey for treatment.
1153. If the husband who is responsible for the wife's maintenance, does not provide her the same, she can draw her expenses from his property without his permission. And if this is not possible, and she is obliged to earn her livelihood, and she cannot take her case to the Mujtahid, who would comple him to pay the maintenance, it will not be obligatory upon her to obey husband while she is engaged in earning her livelihood.
1154. If a man, for example, has two wives and spends one night with one of them, it is obligatory on him to spend anyone of four nights with the other as well; in situation other than this, it is not olbigatory on a man to stay with his wife. Of course, it is necessary that he should not totally forsake living with the wife. And as a precaution, a man should spend one night out of every four with his permanent wife.
1155. It is not permissible for the husband to abandon sexual intercourse with his youthful, permanent wife for more than 4 months, except when sexual intercourse is harmful to him, or involves unusually more effort, or when the wife herself agrees to avoid it, or if a prior stipulation to that effect was made at the time of Nikàa* by the husband. And in this rule, there is no difference between the situations when the husband is present, or on a journey, and then it is not permissible for a man to go to an unnecessary travel for more than four months, without any excuse or without his wife's permission.
1156. If Mahr is not fixed in a permanent marriage, the marriage is in order. And in such case, if the husband has sexual intercourse with the wife, he should pay her proper Mahr which would be in accordance with the Mahr usually paid to woman of her category. As regards temporary marriage, however if Mahr is not fixed the marriage is void, even if it may be due to ignorance or forgetfulness.
1157. If at the time of Nikàa* for permanent marriage, no time is fixed for paying Mahr, the wife can prevent her husband from having sexual intercourse with her before receiving Mahr, irrespective of whether the husband is or is not able to pay it.
But if she once agrees to have sexual intercourse before taking Mahr, and her husband has sexual intercourse with her, then she cannot prevent him afterwards from having sexual intercourse without a justifiable excuse.