Marriage contract

The nikāḥ (marriage) in Islām is a contract, which is done by an offer made by one party and acceptance of that offer by the other party, and such agreement should take place in one sitting, though most scholars would only invalidate it if a long amount of time has passed.¹ The following article examines the relationship between nikah and maintenance.

The marriage contract has validating, invalidating and void stipulations but for the sake of simplicity we shall give the general gist of stipulations allowed, which is that stipulations that do not go against the basic rights of either party under or against Islamic principles are allowed. The Ḥanbalīs, given their leniency in the matter of contracts, allow for stipulations to be made concerning issues that may have been originally made permissible by Islām.² Polygamy, here, is one example, as the wife, during the formation of the contract, legally possesses the right to stipulate that her potential husband is not to take another wife as long as they are married.

The madhāhib require 2 witnesses for the marriage to be legitimate and the guardian of the woman to be present (save for the Ḥanafīs, who opine that the marriage will be valid without the presence of a guardian, provided that the conditions of equality between the potential spouses are met),³ with only the Mālikīs not requiring 2 witnesses for the validity of the contract (though they are required for the validity of the marriage itself), although they, too, demand some sort of publicity of the marriage itself.⁴

The dower can be stipulated with the agreement of both parties,⁵ and the same applies for the maintenance of the wife.⁶ The dower is of particular importance as this is a payment given by the husband to the wife and it is hers alone. The dower can be decided amongst the parties or can be calculated based upon the method of the schools, in which considerations are given to the status of the woman, her age, her beauty, her tribe, her virginity and the dower paid to her kinswomen of similar status.⁷ The dower is the sole property of the wife⁸ and is due to be given back to the husband only if the wife demands a khulʾ, judicial ṭalāq or judicial khulʾ.⁹

Maintenance

The spouses have mutual rights which include, but are not restricted to, the right to inherit from one another, the right to companionship, the right to sexual intercourse and the right to legitimacy of offspring.¹⁰

The wife reserves the right to be maintained and provided for by her husband irrespective of her status and financial situation. This consists of the provision of proper shelter, food, clothing and, depending on her status, servants.¹¹ Maintenance, to a large degree, is dependent on the condition she had originally been accustomed to.¹² For example, if the wife is accustomed to a life of comfort, should it be the case that the husband is unable to provide her with a life of a similar condition as the one she had lived prior, she will have reasonable grounds for demanding separation. The husband has to provide her with a home which is free from his other family, including his co-wives, should he have them, and is safe.¹³ The reciprocal right of the husband in this instance is to be obeyed¹⁴ and hence the right of maintenance and obedience compliment themselves. The husband, if married before the wife reaches maturity, is required to maintain her when she declares that she is ready even if he does not do immediate cohabitation.¹⁵ If, however, the wife refuses to obey the husband without a proper justification, his right to maintain her expires until obedience is reaffirmed.¹⁶ (The reverse, in the case of this right, applies as well, given that the wife can refuse to have intercourse with her husband  should he withhold her maintenance.) Even if the husband is a minor, he is obliged to maintain her, if she is of an age where consummation is possible.¹⁷

The right of maintenance ends at the death of the husband. If the wife is divorced while revocation is possible, the wife has the right to maintenance during the ʿiddah. If, however, the divorce is irrevocable, then she is only to be provided a dwelling during her ʿiddah, with only the Ḥanafīs allowing maintenance.¹⁸

Here as it can be seen quite clearly that there are two different rights but both of them are dependent upon one another, meaning that in the absence of this right being given by one party, the other party is no longer obliged to fulfill their end of the bargain so to say. The right of the husband is to be obeyed and the right of the wife is to be maintained. If the husband does not or can not maintain his wife, then the wife no longer is required to obey him and can seek a dissolution of marriage on these grounds.¹⁹ If however the right of the husband to be obeyed is violated before he cuts off maintenance, then he is no longer obliged to maintain the wife and she can not pursue a dissolution of marriage on this specific ground.²⁰ It is important to also note that these rights are not absolute. Obedience pertains to commands that are reasonable and within Islāmic boundaries. A husband cannot, unreasonably, demand intercourse in the event that his wife is incredibly sick or tired, and nor should he unilaterally impose himself in situations that require consultation. Hence, the ideal home is where there is always a counter balance to either party for a right or action exercised by the other.

Polygamy

The customary and tribal laws of pre-Islāmic Arabia allowed unlimited polygamy but with the advent of Islām this was restricted. The Qurʾān states,

And if you fear that you cannot deal justly with orphans, then marry from the women who seem good to you, two or three or four. But if you fear that you cannot deal equitably, then only one, or those whom your right hand possesses. This is better that you do not injustice.²¹

To treat justly means to treat all the wives equally as much as possible. The man is not required to seek the consent of his wife to marry additional times.

A man can only have a maximum of four wives at a time, and may not validly conclude a marriage with a woman who is related to his existing wife within the prohibited degrees of kinship. Thus, a man may not be married to two women who are sisters by blood or fosterage, or to a mother and daughter.²²

The husband must provide all wives with safe, individual dwellings which, if not provided, would render it acceptable for the wife to refuse to cohabit with him. The husband is required to maintain each of his wives to the appropriate standard (i.e. each of the co-wives is equally entitled to maintenance pro parte). This results, under Shāfiʿī law, in each wife being entitled to the same amount of maintenance.²³ As for the other schools, the maintenance would be contingent upon both the means of the husband and the status of the wife.²⁴

The right of qasm (partition) is owed to the wives in which the husband must divide his nights between them,²⁵ and otherwise pay compensation. Note the right is to companionship not sexual relations. If he takes a new wife, he can spend 7 consecutive nights with her if a virgin, and 3 consecutive nights otherwise.²⁶

Hence polygamy requires extensive burdens from the husband to be present in order for him to have a proper and Islāmic polygamous marriage.

On Polygamy and Equality

Some contend that irrelevant of the system behind the relationship between a man and a woman, both should be in possession of equal rights. Islām quite clearly rejects this proposition and instead strives for balance by imposing obligations and providing rights that compliment each other to produce a more viable marriage. Equality, ultimately, is a moral argument, and the acceptance thereof must be rational. 

Such arguments are often accompanied with the contention that these injunctions are oppressive to the woman. One can easily argue, however, the opposite as well, given that both are subjective attachments of superiority to one right or obligation over another. In other words, it could well be proposed that it is in fact the husband who is oppressed, given that it is he who is obligated to provide her with her needs and preserve her status, irrelevant of whether or not he is in possession of the means. It is his responsibility to protect her, satisfy her, provide her with companionship, and treat her justly. It is his responsibility to provide her with her own space, and even with servants, should she come from a distinguished background. It is his responsibility to account for the provision of his children, and it is he who is obligated to fight should the time for jihād arise. An Islāmic marriage is not based upon the subjective attachment of value to the rights each party possesses, but rather to the cohesive functioning of the family unit.

The majority of the modern world deems it unfair or prejudicial for the husband to be allowed to have more than one wife at a time, while the wife does not have such a liberty.

Polygamy, firstly, is by no means an introduction by Islām, and had existed in one form or another in prior societies (Persian, Jewish and pre-Islāmic Arab societies are some examples). Islam however surprisingly for some actually limits the practice of polygamy severely. As mentioned, however, Islām limits the practice to a maximum of four wives at one time and only allows for polygamous marriage to occur under the condition that the husband is capable of treating his wives justly. The reader should keep in mind the previous elucidations of the article—that the husband must maintain the wives equally (giving all of them houses free from one another, fulfilling needs, wants and luxuries, along with any servants and companionship) and give them the right of qasm (as previously explained). As one would likely be able to appreciate, this is neither an easy physical or financial task, and most men would not be able to fulfill the condition of equity in order for them to qualify for a polygamous marriage to begin with. This is also reflected in Islāmic history, as from the beginning most Muslims only married one wife. 

One may also suggest that polygamous marriages, although feasible in theory, lead to coercive and abusive relationships for women. Islām does not allow such in any capacity, and the home must be free under from ḍarar (harm) done to the wife, and should embody love, respect and honor for the parties.

The contention, however, stretches beyond the rarity of the occurrence of polygamy or limitations to it, to saying that it is morally wrong. Again, this is a moral claim, and unless accompanied by some moral theory or philosophy that shows a binding set of moral propositions, it is intellectually meaningless. Theologically speaking, moral statements are to be viewed in light of the injunctions imposed by God, as it is the commandments of God through which we understand whether a certain act is moral.

In the Western context, in particular, this contention is highly hypocritical. As the western person would likely not disagree with the right of either the man or woman to have several partners who they are intimately engaged with at the same time, either before marriage and on many instances after marriage, since they put personal choice of engagement to be paramount. Hence to point fingers at Islam when it allows the same thing in marriage with limitations while they themselves propose none, is indeed hypocritical. Even in regards to marriage, in the west where marriage is allowed between same sex individuals, animals and humans and old and young, why would this be something that is put under the microscope? One might say that the reason it is put under the microscope is because the woman is not allowed to do the same, and for that the reader should refer back to our previous comments on morality and equality.The ultimate purpose of the law is to retain justice and maintain harmony. Both genders play a role in this regard—in the wider society—and both have responsibilities that they must fulfill towards themselves. A man and a woman fulfilleach other. Marriage is not to be treated as a list of activities to be done, or a list of responsibilities to be fulfilled, by each party, and nor is it the case that it is a matter of competition of rights between the parties concerning perfect equality in every regard. It is not the case that the Divine Law makes impositions to oppress women, and nor is it the case that its injunctions serve to enslave and oppress men. Rather, it takes into account the strengths and the weaknesses of each gender and, with wisdom, imposes injunctions so that they may preserve the spiritual heart of society and attain closeness to God.

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References:

1. See: al-Fiqh al-Islāmī Wa Adillatuhu, Vol. 7, Pp. 49-50.
2. Ibid, Pp. 53-60.
3. See: Bidāyat al-Mujtahid, Vol. 4, p. 214 (ed. Dār al-Kutub al-‘Ilmiyya).
4. See: Al-Sharḥ as-Ṣaghīr Maʿa Ḥāshiyat al-ʿAdawī, Vol. 2, pp. 335-338 (ed. Dār al-Ma‘ārif).
5. See: al-Fiqh al-Islāmī Wa Adillatuhu, Vol. 7, pp. 265-266, Bidāyat al-Mujtahid, Vol. 4, pp. 235-236 (ed. Dār al-Kutub al-‘Ilmiyya).
6. See: al-Fiqh al-Islāmī Wa Adillatuhu, Vol. 7, pp. 798-810.
7. Ibid, pp. 266-268.
8. Ibid, pp. 283-284.
9. For further details, see: ibid, pp. 295-298.
10. For further details, see: ibid, pp. 327-344.
11. Refer to foot-note (6).
12. See: Mawqif al-Islām Min Nushūz az-Zawjayn (by Nūr Qārūt), pp. 227-229.
13. Ibid, pp. 221-225.
14. Ibid, pp. 32-36, pp. 90-98.
15. See: al-Fiqh al-Islāmī Wa Adillatuhu, Vol. 7, p. 789.
16. Ibid, p. 792, and see: Mawqif al-Islām Min Nushūz az-Zawjayn, pp. 161-169.
17. See: al-Fiqh al-Islāmī Wa Adillatuhu, Vol. 7, pp. 789-792. 
18. For details and differences, see: ibid, pp. 658-659.
19. Ibid, pp. 811-812, and see: Mawqif al-Islām Min Nushūz az-Zawjayn, pp. 208-209.
20. Refer to foot-note (16).
21. Qurʾān, 3:4
22. Ibn Rushd, “Bidāyat al-Mujtahid”, 38-50, Garnet Publishing. The reference also discusses other impediments that may deter marriage.
23. Ibn Naqīb, ʿUmdat al-Sālik, 468.
24. Ibn Qudāmah, ʿUmdat al-Fiqh, 220.
25. Ibn Qudāmah, al-Mughnī, 8/138.
26. ʿUmdat al-Fiqh, 222-223.