Part 12

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<Whichever woman marries without her wali’s permission, her marriage is void, her marriage is yoid, her marriage is void. If he (the husband) performs intercourse with her (despite the invalidity of their marriage), the mahr becomes her right because he had access to her private parts. And if they dispute (with the wali about this or other

Quest for Love & Mercy 67 The Marriage Contract

A wall is required to represent his principal and serve her best interest. From the above hadith of ‘A’ishah (5), we see that if the wali causes unnecessary harm to his principal or prevents her from doing things that Allah has made permissible for her, she may protest and dispute that before the Islamic authority. In that case, and if her allegations were found true, the Islamic judge may command the wali to change his course of action, transfer his guardianship to another man, or make other decisions as he sees fit in her case.

Ma‘qil Bin Yasar (<4) reported that he married his sister to a man who subsequently divorced her. After the end of her ‘iddah, he came seeking to remarry her. Ma‘qil said to him, “I married her to you, gave you furnishings, and was generous to you, but you divorced her! No, by Allah, she will never go back to you!” But the man was reasonably good, and the woman wanted to go back to him. Allah (8%) then revealed:

Ma‘qil then said to Allah’s Messenger (&), “Now I listen and obey, O Allah’s Messenger!” So he let them remarry, and expiated his oath. *

1 Recorded by Ahmad, Abii Dawiid, and others. Verified to be authentic by al-Albant (Irwa’ ul-Ghalil no. 1840).

3 Recorded by al-Bukhari, ad-Daraqutni, and others.

The wali, whether natural or appointed, holds a major responsibility before Allah toward his principal. He should represent her and look after her interest in the best possible way. He should make sure that the man who seeks marrying her is suitable for her. His criteria should be what pleases Allah (as has been outlined in Chapter 2), and not what brings him better social status, wealth, or other worldly gains.

If it is demonstrated that the wali is not worthy of his responsibility, he loses his waldyah (position as being wali) according to the procedure outlined earlier.

Another condition for the validity of a marriage contract is the

presence of at least two trustworthy Muslim male witnesses. ‘Nishah, ‘Imran Bin Hasayn, and Abi Miisa al-Ash‘ari (cs)

The witnesses should witness and hear all of the contract’s details, including the permission given by the bride to the wall.

In Islam, the dowry is a mandatory marriage gift given by the husband to his wife at wedding. In Arabic, it is called mahr or sadaq.

1 Recorded by Ahmad, Ibn Hibban, and others. Verified to be authentic by al-Albant

Quest for Love & Mercy 69 The Marriage Contract

Commenting on this dyah, al-Qurtubi (2%) said:

“This dyah indicates that the woman’s saddaq is mandatory. There is a consensus on this (among the scholars), and there is no difference in its regard ...” *

And Allah (8%) commands:

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Even though the mahr is an obligation on the husband, there is no proof to make it a condition for the validity of the marriage contract. As we will see below, a marriage contract could possibly be executed without specifying a mahr. However, that should normally be avoided because it may lead to future complications and disputes.

Who TAKES THE MAHR

The mahr is the sole right of the wife and no one may take any of it without her permission — not even her parents.

Some people may object to the above by citing the story of the old man who offered his daughter in marriage to Miisa (81) and took her dowry in the form of labor work from Miisa (see p. 48). However, asSan‘ani indicates, that was possibly permissible in the laws prior to Islam but was abrogated in Islam '. Furthermore, Miisa’s service to the old man may have profited Misa’s wife as well. Also, she may have agreed with her father to take something from him in exchange for Miisa’s service, or wanted to give up her mahr as a gift to her father.

The mahr is a compensation that the wife takes in return for making herself available to her husband. Thus, Allah (88) gives her full right to it, even at the time of divorce — if her husband divorces her without any default on her part. Allah (88) says:

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Quest for Love & Mercy 71 The Marriage Contract

Therefore, it is up to the wife if she wants to keep all of her mahr, give some of it to her parents or other people, or even give some of it back to her husband '. Allah (@%) says:

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The dowry can be money, jewelry, clothes, or other material things. It can also be a non-material gift, as we'll see below.

The amount of the dowry should be in accordance with the husband’s financial ability and with what is reasonable for the bride in her social status. It is normally determined by agreement between the husband and the bride (or her walz).

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1 Note that the way a woman dispenses of any of her property would still be subject to her husband’s approval. This is discussed further in the third part of this series, “The Fragile Vessels”, by the Author.

<Go (have her as wife). I marry her to you for the portion of the Quran that you memorized. '

One may ask, “What benefit did she get from his memorization of the Quran?” The answer is that he would then be expected to teach her some of what he had memorized, and to treat her kindly according to the upright principles learned from what he memorized. All of that would be of much more benefit to the bride than material gifts.

In addition to a cash sum of money that is usually specified as the mahr, some cultures require from the husband other financial commitments toward the bride, such as clothes, jewelry, and so on. In the Islamic law, all of that counts as part of the mahr, and it is best to clearly name it in the marriage contract to avoid future disputes.

Islam does not set an upper limit for the dowry; but it is recommended to make it light and easy on the husband. A burdening mahr could be a bad omen of a miserable and non-compassionate marriage.

In many Muslim countries, the woman’s parents request extremely high dowries. That has led many young men to forsake marriage or postpone it for a number of years, which has in turn led to the spread of zind and other sins among the young. Thus, the parents should be considerate and should realize that demanding too much from the husband brings harm to their daughters and the whole Muslim community.

1 Recorded by al-Bukhari, Muslim, and others.

3. Ogqiyyah: An old measure that corresponded to forty dirhams.

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