Part 18

Is such woman liable to a discretionary punishment that should be executed by the ruler or one of the local authorities, such as the muhtasib?

A: This woman is liable to a discretionary punishment,’ even for several times, which is preferable. The Caliph ‘Umar bin Al-Khattab used to repeat the discretionary punishment for committing something forbidden.

Thus he was of the habit of giving the guilty person 100 slashes on the first day, 100 on the second and 100 on the third, so as to avoid the damage of any of the body members of the guilty person, should he receives all the 300 lashes all at one time.

The woman in the above case committed some major sins such as ascribing oneself to a man other than one’s real father, and made a stranger man take the place of her brother. In the Two Sahihs it was narrated after the Prophet (peace be upon him): “Whoever attributes himself to a man other than his father, or be loyal to people other than his maters (if he is a slave), Allah will curse him, as well as the angel and all mankind.”

In another hadith the Prophet (peace be upon him) said: “Whoever ascribes himself to a man other that his father, the Paradise will be forbidden to him.” Ina third hadith it was narrated that the Prophet (peace be upon him) said: “He will not belong to us who knowingly claims his being a son to a man other than his real father, for such person will be a disbeliever. He will not belong to us who claims something which is not really his own, but let him be seated in his place in the hell-fire. Whoever wrongfully accuses another of disbelief, will be a transgressor against him.” These two strong words indicate that the one guilty of any of these will be liable to a strong punishment of no less than 100 lashes.

Even worse, the above-mentioned woman deceived the witnesses and led them to witness an invalid contract, and married with a null contract. According to Muslim scholars, a marriage contract will be regarded void if concluded in the absence of the guardian. They used to inflict a discretionary punishment on whomever is guilty of this crime, in pursuit of the example of the Caliph “Umar bin Al-Khattab (may Allah be pleased with him). This is the opinion of Imam Al-Shafi’i and others.

Rather, some group of scholars were of the opinion the punishment of stoning to death should be executed in suchlike cases. Even those who claimed that marriage without a guardian is permissible did not approve of the ascription to a false father or of bringing a false guardian. Thus the punishment of such acts was agreed upon among all Muslim scholars.

That woman is liable to punishment also because of her telling lies, and the claim that the man she brought was her ex-husband who had divorced her. The fake husband also is to be punished, as well as the one who pretended that he was her brother. As for the witnesses who knew their case, they will be liable to the punishment of perjury which included the witness of her false attribution to other than the woman’s father, the fabricated stories of divorce

_ and marriage, and the absence of the real guardian.

The punishment of those people should be intensified. The Muslims scholars maintained that the face of a perjurer should be blackened as an indication that he blackened his face by telling lies, and should be made to ride a mount on a reversed position (his face to the posterior of the mount and his back to its face), as an indication that he reversed the correct narration. He is to be roamed with throughout the streets of the city to be defamed among people.

The discretionary punishment can _ be carried out by the ruler, the muhtasib or any other influential capable of inflicting it.

In this case the infliction of punishment is necessary, since it includes the corruption of women and the false testimony. The Prophet (peace be upon him said: “If people witnessed evil behavior widespread and did not try to change it, it will be very likely that Allah will cover all with a torture.”

Obligation of the virgin major woman

Q: Can a father compel hi s virgin major daughter to marry a certain person?

A: There are two opinions concerning this:

1. The father has the right to compel his virgin daughter to marry a certain person. This is the opinion of Imam Malik and Imam Al-Shafi>i, and the chosen opinion of Al-Kharaqi and Al-Qadi and his companions.

as The father does not have the right to compel his virgin daughter to marry a certain person, which is the opinion of Abu Hanifah and others, and the chosen opinion of Abu Bakr ‘Abdul-‘Aziz bin Ja’far. This is the correct opinion. Difference arose, however, on the cause of obligation on the part of the father: the daughter being virgin only, minor only, or for both reasons. The correct view is that the father will be entitled to compel his daughter if she is a minor. Thus, a virgin major woman cannot be obliged to marry.

It was narrated after the Prophet (peace be upon him) that he said: “A virgin woman cannot be married unless she gives her consent. As for a previously married woman, she should agree on marriage.” It was said to him: A virgin woman becomes shay to give consent. He (peace be upon him) said: Her silence is regarded as a consent.” In

another wording of the narration it was said: “She (the virgin woman) cannot be given in marriage until her permission is sought.” This means that the father, or anyone in his place should seek her permission.

3. The father, furthermore, cannot dispose of the property of his major daughter unless after taking her permission. However, her chastity, is of greater value than her property.

4, Furthermore, according to the consensus of opinion of Muslim scholars, it is the minority, not virginity that gives the father the right to interdict the disposition of her daughter.

5. Those who give the father the right of obligation differed on the case when a woman chooses a man, who is equal ho her status as a husband, while the father chooses another person, who is equal to her status also, as a husband. Which of the two choices is to prevail? Those who say that the choice of the father is to prevail, which is one of the two views in the Shafi’i school, they actually contradict the original rule in their school. As for those who gave preference to the choice of the father, their opinion includes a crystal-clear corruption and harm. The Prophet (peace be upon him) said: “A previously married woman (thaiyyb) is more rightful to dispose of her own affairs than her guardian, and the virgin woman is to give her consent (before her-guardian proceeds on the affair of her marriage).

Her silence is an indication of her consent.” In another narration it was said: “The previously married woman (thaiyyb) is more rightful to manage her own affairs than her guardian.” This indicates, on the other hand, that a virgin is not entitled to dispose of her own affairs without the interference of her guardian. Rather, the guardian is more rightful to that than her. This is the exclusive right of her father and grandfather. This is the argument of the proponents of giving the right of obligation in marriage to 6the guardian. They did not apply the surface meaning of the above hadith and stuck to their own understanding of it, though they could not understand the purport of the Prophet’s saying: “The previously married woman (aiyym) is more rightful to dispose of her own affairs than her guardian, which is applicable for any kind of guardian, not only the father and the grandfather as they claim.

As for the Prophet’s saying: “The virgin woman is to give her consent (as regards her marriage)”, they held that ascertaining the consent of the virgin is not obligatory, rather mandatory. Some of them said that: “As the consent of the virgin is mandatory, it is sufficient to interpret her silence as a consent. If it is obligatory, she should have been obliged to express her consent in speech.” This is what some of the companions of Imam Al-Shafi’i and Imam Ahmad said.

The above opinion, however, is contradictory with the preceding consensus of Muslim scholars, and the clear sayings of the Prophet (peace be upon him). It is proved by the sound detailed texts from the Prophetic Sunnah and the

consensus of opinion of Muslim scholars that if a virgin woman is married by her brother or her paternal uncle, her consent should be ascertained.

Actually, the Prophet (peace be upon him) differentiated between the virgin and the previously married woman, as mentioned in the above hadith, in terms of the methods of ascertaining the consent of each in the case of marriage, i.e. silence for the first and speech for the second. The Prophet (peace be upon him) did not differentiate between them in terms of the principle of compulsion (/jbar).

Forcing a virgin woman to marry against her will is contradictory to the teachings of Islam and the dictates of sound logic. The guardian of a virgin is not entitled to force her to conclude a sale or tenancy contract against her will, or to compel her to eat, drink or wear a dress which she does not want. How can then he oblige her to live and have intercourse with a man that she is averse to. The friendliness, intimacy and mercy, which are the prime aims of marriage, cannot be realized in suchlike kind of marriage.

If a discord (Shigaq) occurs between the spouse, two arbiters (hakamain) should be appointed, one from the family of the husband and the other from the family of the wife. According to some opinion, those two persons are regarded as representatives of the spouse, but not arbiters. But the correct view is the first. The mission of the arbiters is to exert their efforts to realize the interest of the spouse, either to reconcile or separate each from the other. Thus, one of the arbiters is entitled to the right of divorce without

the permission of the husband, while the second arbiter is entitled to pay a compensation from the money of the wife without taking her permission, so that the husband may divorce her. In this case the two arbiters are regarded as guardians of the spouse. Based on this opinion, a father can divorce the wife of his minor or insane son, if he deems an interest in doing so.