Home plays a very important role in the civilised life of man. It is a small world in itself. An individual is born, brought up, and trained in family atmosphere and this naturally leaves an everlasting impression on him. His character and habits are developed at home, and in the family, and these factors are responsible for his future career. This is the reason why the Quran has laid so much emphasis on family life, and has touched (for guidance) even the minute aspects of it in most elaborate form. A good family order serves as a model for the society, and its people determines future of a nation.
Within a family, role of its head is very important as the entire responsibility of family management rests on him, particularly at the stage when children are in their tender age. He has to protect himself as well as his family members from all kinds of troubles and difficulties. He has to arrange for their basic needs health, care, and educational requirements. The head of the family has to be very carefully while taking decisions in these matters. A wrong decision taken by the head of the family can become the cause of great damage to the entire family. He shall, therefore, prevent himself and his family from the disastrous consequences of choosing a wrong path (66:6). He has to see that his family is engaged in productive activity as well as constructive work. This is possible through correct and farsighted planning and its effective implementation.
Husband and wife, particularly as father and mother, are the two significant pillars upon whom the entire edifice of the family rests. It is, therefore essential that their relationship should be cordial as well as harmonious to achieve happiness and prosperity of the family so that the home may serve as model for others in the society. Such relationship creates an impact on younger members particularly the children. From the beginning itself the relationship between these two life partners should be cordial if not ideal.
The main object of married life is that the husband and wife live together honourably and harmoniously in love and affection, and thereby make home a place of peace and an abode of rest and pleasure -- a heaven on earth. It will serve as a model for others to follow (25:74). This kind of relationship will provide opportunity to both the spouses to make use of their potential and allow their capabilities to grow and develop (30:21). Both should respect and be complementary to each other. The relationship between the two should be most intimate. The Quran has so beautifully described the type of their homogeneity when it says that husband and wife are garments for each other (2:187).
It has been often reminded that treatment given to wife by her husband should not be harsh in order to appropriate a part of her dower unless she is found guilty of open indecency, the matter will of course be decided by the appropriate authority. When something from the side of the wife is disliked, one should not get annoyed over immediately or diced at once to get separated from her. It is quite possible that such thing may bring about abundant good for the husband (4:19).
Man and woman agree together to lead married life and this agreement is called nikah (marriage), and the two parties accept the responsibilities and obligations and thus live together as husband and wife. For nikah it is necessary that both man and woman have attained the age of puberty-the age of full bloom and strength (4:6, 40:67). Nikah is not possible without mutual consent of both the parties in the presence of at least two witnesses, one from the side of the man and the other from the side of woman. (Man and woman have free choice to marry each other (4:3, 19) Men have been forbidden to marry women against their will, they cannot marry without obtaining consent of women and thus become their masters instead of companion. (4:19) The criterion for selection of spouse should be the unanimity of ideology and faith in Islam, and this is the reason why a momin (Believer-man) is forbidden to marry a mushrika (Unbeliever-woman) vice versa, and thus to save home from becoming hell whereas Allah wants it to become heaven (2:221).
Nikah should be performed in a declared manner, and the relationship between the spouses should not be kept a secret. If it is performed secretly it is not legal. (4:25; 5:5) The Quran has not suggested any ceremony for nikah, nor it has mentioned about involvement of a (third) person to perform it. Since nikah is an agreement between two parties, government can formulate rules and regulations (marriage Act), and it has to be performed accordingly.
For those who are capable of getting married the society has to provide facilities for nikah. (24:32) Those who could not get facilities to get married should keep themselves chaste by self-control till they get alliance. [(24:33)-VI, p.803] Prostitution is prohibited.
Married couple is forbidden from sexual Intercourse when:
Forbidden Women for Nikah
Certain women (relationships) are forbidden for nikah. They are:
(1) Yours mothers
(2) Your daughters
(3) Your sisters
(4) Your father’s sisters
(5) Your mother’s sisters
(6) Your brother’s daughters
(7) Your sister’s daughters
(8) Your foster mothers
(9) Your foster sisters
(10) Mothers of your wives
(11) Your stepdaughters, which have been brought up under your guardianship and are born of wives with whom you have had marital relations. If you have not had marital relations then the prohibition does not apply.
(12) Wives of your real sons.
(13) It is also prohibited to have in marriage two sisters at the same time.
Also forbidden to you in marriage are those women who are already married except those whom you already possess. (4:23,24)
A Muslim man should not marry a mushrika (Unbeliever woman) until she accepts Islam; likewise Muslim woman should not marry mushrik man until he accepts Islam. (2:221) A Muslim woman cannot marry a man from amongst the people who believe in the earlier scriptures (5:5)
Monogamy and Polygamy
It is a misunderstanding that Islam has permitted polygamy (to marry and keep four wives at a time). The fundamental principle is to have one wife at a time. The Quranic instructions that if one decides to marry another woman in place of his existing wife he has to divorce (as per the given procedure) and this itself clarifies that no one is allowed to have more than one wife at one time. (4:20) This should not lead to think that whenever a person wants to marry another woman in place of his existing wife, he might divorce her and go for another marriage (for sex enjoyment or for other reasons). Second marriage is not permitted until and unless differences between husband and wife have reached the climax, ending up by declaring talaq (divorce) and the wife is divorced
To have more than one wife, up to a maximum of four at a time has been permitted under extra-ordinary circumstances and for valid reasons. For example, as a result of war when a considerable number of women became widows including those of very young age, and large number of children become orphans, and when their economic, social, ethical, and sexual problems cannot be solved by any other satisfactory means, the Islamic State can allow an exception to the general rule of monogamy. Such an exemption has to fulfil two conditions viz. (I) such a person will have to do justice and give equal treatment to all his wives, and (ii) he should be economically sound enough to bear the burden of such a large family. Of course consent of the first wife in this matter is necessary. If anyone of these conditions is not fulfilled, permission to go for next marriage is not granted and one should stick to the rule of one wife (4:3); this is the only verse found in the Quran on this subject. Rather at another place the Quran says that despite his strong desire it would not be possible for a husband to be fair and just towards women (wives). One should not be inclined wholly to one wife leaving the other in a state of suspension, like one who remains neither divorced nor undivorced (4:129).
Mahr (dower) is that amount which is paid by the husband to his wife at the time of nikah (marriage) or agrees to pay afterwards. Mahr is the term in usage to express the payment, the Quran has not used this word, and instead it has used the word nehlah to clarify that this amount is not in lieu of anything else except a specific gift to wife and not remuneration (4:4). Its payment is compulsory. In this regard an example of honeybee has been quoted in the holy Quran so far as payment of mahr is concerned, when the honeybee expels honey it does not expect any return for it.
If the amount of mahr has not been fixed at the time of nikah the payment will be acceptable by mutual consent. Since the payment has to be made necessarily, it has to be fixed as per the husband’s capacity to pay it. Therefore, the amount could be anything, even a heap of gold (4:20). The mahr is generally paid at the time of nikah (marriage) itself. In case nikah has been performed but mahr has not been fixed, it can be fixed after the nikah (2:236). Mahr is the property of the woman (wife). She cannot be deprived of her right. If the woman (wife) so desire, she can forego the whole amount or a part of it (4:4, 4:24).
In case divorce has taken place after nikah, and the husband has not touched the woman (wife) and (I) if mahr has not been fixed, then the husband has to pay as much as he can so that the damage thus caused to the woman’s name could be made good to some extent. This kind of treatment is necessary because it exhibits its worth (2:236; 33:49); (ii) if the mahr was fixed but the man has not touched the woman (he has married) and divorce has taken place, then half of the value of mahr will be given to the woman unless she, by herself forgoes it or if the husband pays the entire mahr it is his righteous act (2:237).
Under a situation when the woman is found guilty of open lewdness (immorality) a portion of the mahr could be given to the husband (4:19).
In case the woman demands for divorce and if court feels it necessary, she has to forego a part of the mahr and get free from the marriage - the nikah (2:229)
Giving material goods as jahez (dowry) is merely a custom about which there is no mention in the Quran. Demand for such material goods or cash by the man is gross excess; the Quran has rather instructed men to give to the woman but not to take from her.
The object of nikah is to lead a purposeful, peaceful, and harmonious life. For this purpose selection of an alliance has to be done carefully and thoughtfully. Inspite of taking all-possible care in this matter, certain circumstances arise and result in tense relationship between husband and wife. This situation prevails temporarily and gets normalised by lapse of time. In other situation, a person in anger calls his wife as his ‘mother’ or talks some rubbish with her; this is called zihar. This is a kind of thoughtlessness in oaths, and when the anger subsides, he feels ashamed of it. Such calling does not make his wife the mother, and it is similar to that of calling a person as ‘son’, and this does not make him a natural son (33:4). Such an attitude towards wife is strongly condemned and punishment has been imposed for it that such a person, before touching his wife should free a slave (since slavery prevailed in the then Arab society). If he is not in position to do so, he should fast for two months consecutively, and if he is unable to observe fast the should feed sixty indigent (poor) persons before they touch each other (58:3-4).
In another case when a man has taken an oath for abstention from his wife that he well not conjugate with her, he is given four months (as waiting) for reconsideration to resume as this situation cannot remain permanently. During this period if they resume conjugation, they are permitted to do so. If their intention is firm to dissolve the marriage they can do so as per the provisions of the Divine Laws (2:226 -27 ‘ 4:35), The object is not to leave the woman at the mercy of man under any circumstances. And her rights are fully protected.
In connection with relationship between husband and wife (4:34), it is generally interpreted that the rank of man (husband) is higher than that of woman (wife), and men are rulers over women, An example of such an interpretation is: "As far those women who seem to have gone refractory, (first) admonish them (and then, if necessary) remove them to separate beds, and (if that fails) give them a shaking." (4:34) In case if a situation arises when woman (wife) turns rebellious, this will not remain an individual problem but it will become a collective one; the matter of protection and upbringing of the children will get associated with this case. At this stage, the society or the State has to take steps giving them a chance to understand each other and rethink over the matter. If this approach fails, then their husbands will be asked to detach their sexual relations for sometime, so that this treatment may create a psychological effect on their mind. If all these approaches fail, the court of law may give some physical punishment to the party at fault. In case the husbands are given a free hand to punish their wives by beating them, it will create chaos in the society, and instead of solving a problem, we may create several other problems for the women, their suckling babies children, homes, hospitals, etc.
It has been stated earlier that nikah is an agreement, with full consent between a man and a woman (fully matured and sane) for leading married life. This aims at a happy family life. When possibility of maintaining married life does not remain, both the parties are permitted to cancel their nikah - marital tie; and a relief from this bond is called talaq (divorce).
In the matter of nikah only two individuals-man and woman are involved, and therefore, it is confined to these two individuals only. The matter of talaq is not so confined to two individuals alone; sometimes besides them, their children’s interest will be affected, and thus it becomes a common matter of the society. It is worthy of consideration that at the time of formulation nikah deed consent of both the parties viz. man and woman was necessary; when the same agreement is being terminated, how could only one party namely the husband is given all the rights to terminate the same unilaterally, saying in one breath talaq-talaq-talaq, and driving away the lady from home. At the same time, she is helpless to face innumerable troubles to settle the matters of divorce.
Rights and responsibilities of husband and wife are equal, and the position of both the parties shall be similar in the matter of talaq too. Guidance of the Quran in this respect is that "If you fear a breach between the couple, then appoint an arbiter from the man’s family and an arbiter from the woman’s family. If the two (husband and wife) desire to reach a settlement, God is knowing, the Apprised of all." (14:35) Some of the Islamic scholars say that this is "An excellent plan for settling family disputes, without too much publicity or mud-throwing or resort to the chicaneries of the law. The Latin countries recognise this plan in their legal systems."
In the matter to talaq, irrespective of complaint put forth either by the husband or the wife, it will be the responsibility of the society to appoint a board of arbitration. If the wife feels excesses or negligence from the husband’s side, the better course will be that both husband and wife should sort out their differences or appoint a board of arbitration. (4:128) The woman (wife) can also take her case to the court that she too has got full right for divorce (as per the law). But the efforts of the board will be to settle the matter between the husband and the wife amicably. The Quran has used the term talaq for husband and wife both; it has not used the term khula, which has been coined later. It is said that ‘husband has handed over the right of talaq to the wife, but this is not correct. When the wife too has got the same right of talaq as that owned by the husband, then handing over the right of talaq to the wife by her husband makes no sense.
If a settlement between husband and wife in the matter of talaq could not be reached, then the institution or the court, which has appointed the arbiters, will pronounce the dissolution of the nikah (marriage). This is called talaq. In the matter of talaq, the Quran has addressed the Prophet (S), who was a judge or court (65:1). This indicated that the matter of talaq is not restricted to the two parties i.e. husband and wife only, it has wider horizons. The Prophet (S), who was assigned by the Almighty the role of court, was asked to inform the concerned persons that the matter of iddat (‘waiting period’ during which a divorced woman or a widow cannot marry) carries great significance, and this should always be kept in mind (65:1). As the iddat is based on menstruation, to account for iddat the talaq judgement should not come into effect until the concerned woman has completed three menstrual cycles. Those who do not menstruate due to physical disorder or old age, should wait for three months (65:4); only those women whose marriage is not consummated, have no ‘waiting period’ (33:49). If a woman is pregnant she must declare it, and the ‘waiting period’ for her is until the delivery (65:4). Iddat (‘waiting period’) for a widow is four months and ten days (2:234).
In case the court sees that the husband does not want to continue with his wife, the talaq judgement is given and the (divorced) woman will not give anything to the man. In this respect instructions given are very clear (4:20-21) and that the circumstances have led to the stage of separation. In this case, if a person has given even a whole treasure as mahr to his wife, he should not take back even a fraction of it (when talaq process has been initiated from his side). A portion form the mahr can be taken back when the woman takes initiative for talaq (2:229), or when she is found guilty of open indecency (4:19). This will also help to check a situation under which a woman performs nikah with a view to get mahr and afterwards she takes steps for talaq, then she has to surrender a portion of the mahr. At the same time man has been warned not to accuse or slander a chaste woman of open indecency with an object of compelling her to forego a part of her mahr for the husband. This is such an open sin, which does not require any evidence. The instructions are that whatever one has given her how he can take it back when he has enjoyed marital relations with her. Also at the time of nikah there was a solemn covenant from the husband for complete protection of her rights, and on the basis of this one should respect the agreement (4:20-21).
On pronouncement of talaq by the court, iddat commences for the woman; during this period she cannot marry (as stated earlier). She will remain there only where she was living with her husband before the talaq, and the cost of her maintenance will be borne by her (previous) husband with a provision to have the same standard of living she was enjoying before the talaq (65:6-7). If the woman is pregnant at the time of talaq, her expenditure will be borne by her previous husband till the delivery. After the delivery if she suckles baby, and if the man cannot make any other arrangement for this, she should be paid for the suckling, details for payment have to be settled mutually and under the provisions of the prevailing law. If this arrangement causes hardship to the man, separate arrangement is made for suckling through some other woman. While fixing the amount of expenditure of the divorced woman during the ‘waiting period’ or for suckling, it has to be done as per the paying capacity of the husband. If a person is financially depressed he should pay whatever he can (65:6-7). Further instructions of the Quran in this respect are: "Reverting to family laws, men should leave a will behind stating that their widows should be given maintenance for a year without requiring them to leave their homes. However, if during this period, the women of their own accord leave their home and make a decision regarding their further life, you are not to be blamed for it. And remember that these laws are given by Allah who is Almighty Wise". (2:240).
When the iddat is nearing its end, the husband may either take the (divorced) wife back on equitable terms or part with her on equitable terms (65:2). If the husband initiated termination of Nikah and he desired to resume the martial relationship, with the consent of the woman he may do so even during the iddat.
Two things are very clear in this respect (I) if the wife had initiated dissolution of marriage, it means that she does not want to cohabit with the husband. Therefore the husband cannot take her forcibly; it is altogether a different matter that she makes her mind to join her husband again; (ii) if the husband had initiated talaq, though the wife wanted to continue with him and the man corrects himself, then the martial relationship could be resumed. Under such a situation, the Quran warns that resumption of marital relationship should not be with a malign intention to do harm to her or to transgress the limits of Divine law and whosoever harms her harms him. (2:231) When both the spouses desire to reunite, they should not be prevented (2:232).
When reunion between the spouses has taken place, a question arises that for stabilisation of the martial relation whether renewal of nikah will be necessary or the same old agreement of marriage will be enough. This matter has been left to the society that if it wants it can recognise the previous nikah agreement, and if the society decides otherwise fresh nikah agreement has to be made. The State has to consider necessary that renewal of the union during iddat should be done in such a way that this is considered as nikah.
If the spouses have decided again to live as husband and wife, the above procedure will be adopted. If they have decide for separation, then two witnesses will be required who should not allow any concession to either of them. These witnesses should stand considering their service as duty to Allah (65:2). And that consideration (for reunion) which was an available to the man and the woman during iddat will not remain.
For these individuals (husband and wife), Whether they reunite or get separated, this step will amount to pronouncing one talaq.
If this couple has resolved to continue as husband and wife (whether during the iddat or thereafter), and again they have resorted for separation, the same procedure as given above has to be adopted. This will be treated the second talaq.
After the third talaq, neither during the iddat nor afterwards, they can cohabit as husband and wife (2:229). In case the woman gets married elsewhere and leads regular married life, and there also such a situation develop leading to talaq, or she becomes a widow, then the woman can re-marry her previous husband (2:229-30) In the light of the above explanation, it becomes quite clear that pronouncement of talaq thrice (at three different times) means final termination of the nikah i.e. married life.
With regard to suckling the infant (baby), it is not necessary for mother to suckle for a specific period of time. The parents depending on the conditions of the baby could take the decision in this matter. In this regard the Quran observes that the mother carries the baby in her womb and suckles it after delivery for a period of two years (2:233; 46:15), then expenses for the maintenance of the mother will have to be borne by the father, and these charges will not be beyond the father’s capacity. If both of them agree that the mother is relieved from suckling of the baby, they may do so. If the father desires to arrange another woman for suckling the baby, there is no harm in it, but whatever had been promised to the mother, that should be fulfilled accordingly. If the father dies during this period, the maintenance cost of the baby should be borne by his heirs.
On separation of husband and wife, children should stay with whom is the matter to be decided by the competent court or the State. It is to be kept in view that neither the father nor the mother or the heirs should suffer unnecessarily in this regard. The State could formulate rules for this purpose.Part -2 Continued