Part 19

Likewise, a father can conclude Khul’ on behalf of his daughter if he deems an interest din doing so.

Moreover, if a woman is divorced before the consummation of marriage, her father can remit the husband from half of the amount of the dower, if he is considered as the one entitled to conclude the contract of marriage, which is the opinion of Imam Malik, and one of the two narrations, after Imam Ahmad. The Quran supports this opinion.

The dower differs in nature from the rest of the woman’s property, as it is due to her as a gift. In the case of divorce before the consummation of marriage, the woman does not lose her virginity, and divorce in considered as an annulment of the marriage, just like other kinds of contracts, thus half the dower was not originally the right of the divorcee. But the Law-Giver made it her right as a compensation of the mental anguish resulted from the divorce.

According to Ibn ‘Umar, Imam Al-Shafi’i and Imam Ahmad, in one of the narrations after him, half of the

amount of the dower in the case of divorce before the consummation of marriage is the equivalent of the Mut ‘ah (outlay and all that is given by the man to his divorced woman to benefit with) in the case of divorce after the consummation of marriage.

According to Imam Ahmad (in another narration after him) and Imam Abu Hanifah, the Mut’ah is the exclusive right of the woman who is divorced before the determination of the amount of dower and the consummation of marriage. According to them, Mur’ah is a compensation given to the divorcee instead of half of the amount of dower.

Others say that the dower becomes a settled right to the woman by virtue of the conclusion of the contract of marriage and the consummation of it, even before divorce. As the Mut’ah is the result of divorce, it will be a right to every divorcee, except in the case of the woman who is divorced after the determination of the amount of dower, but before the consummation of marriage. In such case she is given half of the amount of dower as a Mut’ah, thus will not be entitled to any increase. This opinion is stronger, as the Mut’ah is made as the result of divorce, so it should not be made a compensation of the dower, which is the result of the conclusion of the contract of marriage and the consummation of it.

A third opinion, which is attributed to another narration after Imam Ahmad provides that each divorcee is

entitled to Mut’ah, as is maintained in the following Qur’anic verse: “O you who believe! When you marry believing women, and then divorce them before you have sexual intercourse with them, no ‘Iddah [divorce prescribed period] have you to count in respect of them. So give them a present, and set the free (i.e. divorce), in a handsome manner.” (33:49)

The command in the verse provides-for the Mut’ah for women divorced before the consummation of marriage. The case of divorce determining the amount of dower was not specified here, despite the fact that in most cases divorce occurs after determining the amount of dower.

In addition to the above-mentioned, if divorce is the cause of Mut’ah, the dower is the result of the contract of marriage. As for the woman who gives her husband the right to determine the amount of her dower, without actually determining it, she will be entitled to the same amount of dower paid to any of her counterparts in her family upon the conclusion of the contract of marriage. It will be her settled right even after the death of her husband. Ina hadith it was narrated that a woman married to a man, then her husband died before determining her dower.

The Prophet (peace be upon him) decided that she would be entitled to an amount of dower similar to that paid to any of her peers in her family, without decrease or increase. However, if such woman was divorced before the consummation of marriage, she would not have been entitled to half of the dower, in accordance to the Qur’anic

verse, since she did not stipulate the determination of the amount of dower. The anguish resulted to her by divorce is compensated by Mut’ah.

The purpose of the Law-Giver is not to compel a woman to marry a man against her will. Rather, in the case of discord, the woman’s affair is managed by persons other than the husband, from among her family and his, in order to fulfil the interest of both of them. Such persons can separate the wife from her husband without his permission. How can she _ then be obliged to live with him against her will?

The wife is considered as optionally captivated in the house of her husband. Thus, such captivity cannot be concluded without her consent. The Prophet (peace be upon him) said: “Fear Allah as regards women. They are regarded as captives in your houses. You have taken them by virtue of the trust of Allah. They have become lawful to you (to intercourse with) by virtue of the Word of Allah.”

Marrying a woman to her relative against her will

Q: A major woman had a relative who proposed to marry her, but she refused him. Her family said to the relative: “Conclude the marriage while her father is present.” Can this marriage be effective?

A: No doubt, if the relative is not suitable to marry her, she will not be compelled to marry him. If he is suitable, the scholars have two opinions as regards this case, the stronger of which, which finds support in the Holy Qur’an and the Prophetic Sunnah is that she will not be obliged to accept this marriage. The Prophet (peace be upon him) said: “A virgin woman cannot be married unless after her father ascertains her consent, which can be indicated by

Guardianship of a stranger

Q: A man married a major woman from her paternal grandfather, who neither claimed his granddaughter as major nor had a permission from her father to be her guardian. Short before his death, the grandfather appointed a stranger as a guardian of his granddaughter. Is the grandfather still considered a guardian of the woman after her marriage? Is he entitled to appoint a guardian to her?

A: If the woman is major and mature, no one can consider himself her guardian, neither the grandfather, nor any other person. This is according to the consensus of the Muslim scholars.

If she is liable to be interdicted, the scholars differed

on her case as follows: Imam Abu Hanifah deems that the grandfather has the

right to be her guardian.

According to Imam Malik and the famous opinion of Imam Ahmad, the grandfather is not entitled to be her guardian.

WOMEN FORBIDDEN IN MARRIAGE The Exchange Marriage [Shighar]

Q: A group of people used to exchange female relatives in marriage, that a man gives his sister in marriage to a person on the condition that such person should in turn gives him his sister or daughter in marriage. If either of the two men spends money on his household, the other spends equal amount of money. If one brings clothes to his wife, the other follows suit. The matter goes the same in all things. If one is angry with his wife, the other becomes angry too. If one is pleased with his wife, the other becomes happy too. If the former punishes his wife, the latter punishes his wife too. Is such conduct permissible?

A: Each of the two husbands should live with his wife on equitable terms, or better divorce her with an agreeable manner. A husband should not vary his treatment to his wife on the basis of the treatment of the other husband. A wife is entitled to a right on her husband, which does not fall due to a maltreatment on the part of her brother or her father. If one of the two husbands deals with his wife with injustice, the other should prove his accountability on this, rather than being unfair to his wife, for the mere reason

that she is the daughter of the other one. If both husbands deal with their wives with injustice, aiming to revenge each other, they both will be liable to punishment. The wife of each will be entitled to demand her rights from her husband. If such treatment is stipulated in the contract of marriage, it will be considered an invalid condition attributed to the exchange marriage [Shighar].

Combining ‘a woman and her maternal aunt in marriage

Q: A man married the maternal aunt of another, then married his daughter. Is this marriage valid?

A: It is not permissible to combine in marriage the maternal aunt of a man along with his daughter. The Prophet (peace be upon him) forbade that a woman be taken in marriage along with her maternal or paternal aunt. This is agreed upon by the Four Imams. They also agreed that the above hadith includes the maternal aunt of the father, mother and grandmother, as well as the paternal aunts of the parents. Thus, a man cannot take in marriage a woman along with the maternal aunt of her father or mother.

Taking in marriage the paternal aunt of a man along with his niece 167

Q: A man took in marriage the maternal aunt of a man along with the niece of that man. Is this marriage valid?

A: Taking both of these women in marriage at the same time is considered as combining a woman and the maternal aunt of her father in marriage. If the father of the woman is a maternal or a full-brother of the other man, then the maternal uncle of one of them is the maternal uncle of the other. But if the former is the paternal brother of the latter, then the maternal aunt of one of them cannot be regarded the maternal aunt of the other, rather, she is regarded his paternal aunt. In all case, combining a woman and the maternal aunt of her mother, the paternal aunt of her father, or mother is like combining in marriage a woman and her paternal or maternal aunt. All these forms of marriage are forbidden according to the consensus of Muslim scholars.

If aman marries either of these women after the other, the second marriage will be invalid, even without divorce. The contract of such marriage does not give the wife the right to the amount of dower or inheritance of the husband. The husband cannot consummate marriage or have intercourse with her. If marriage is already consummated, he should separate with her, just as he separates with a stranger woman.