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From Nikah to Marriage: Towards a Social Definition of Marriage from an Islamic Jurisprudence Perspective

From Nikaḥ to Marriage

Towards a Social Definition of Marriage from an Islamic Jurisprudence Perspective*

Prof. Amany Saleh

And of His signs is that He created for you from yourselves mates that you may find tranquility in them; and He placed between you affection and mercy…”[1]

(Ar-Rum (The Romans): 21)

The issue of reformation is considered to be one of the collective and individual obligatory acts upon Muslims anytime and everywhere. Reformation can be applied to all the humanitarian structures; whether the social and political and even cognitive, cultural and moral structures. However, it is necessary to mention that the reformation of any social or intellectual structure does not necessarily indicate its corruption (such structure may have achieved a remarkable success in a specific time and place). It may, sometimes, indicate the corruption of its relationship with its vital environment which appears in its failure in fulfilling its functions; due to historical factors or transformations in its cultural and social environment. In fact, these transformations lead to a state of inadequacy and inefficiency in achieving a fruitful interaction. Consequently, such structures fail to fulfill their functions and internal and external procedures inside its new environment.

Undoubtedly, the Arab Muslim society is witnessing huge and comprehensive crises; some of which are political, social, economic and value-based crises. One of the most dangerous signs of such crises is the spread of the disease till reaching the backbone of the Arab Muslim society; the family which is the principal unit of the social system. In this regard, this paper is dedicated to demonstrating the shortcomings of the Islamic Jurisprudence (Fiqh) perspective that should be avoided, and which resulted due to the development of the social factors and human needs in the Islamic World. As a wholly legal, moral and intellectual structure, the system of Fiqh plays a pivotal role in establishing the family structure by considering it one of the pillars of the social system. Thus, the reformation and development of this system becomes inevitable; being a condition for achieving a social reformation.

At the beginning, it is important to give an outline of the research topic, methodological approach of this topic and finally the referential frame.

First, regarding the research topic, this paper focuses on a certain viewpoint which is considered to be of a central significance when discussing the issue of marriage and family which is the definition of marriage from an Islamic Jurisprudence perspective. Definition is the initial step which helps in introducing an overview on an object and knowing how to deal with it, as the strength points and shortcomings of the definition affect the whole structure.

On the other hand, the significance of Fiqh is apparent; as all legal laws concerning personal status, in most of the countries across the Islamic world, depends on the Islamic Jurisprudence. Yet, this vision is also adopted by the population and ideologies which regards Fiqh as equal to religion and Divine Legislation without considering it a man-made interpretation or reflection.

Second, regarding the methodological approach, this paper adopts a social and cultural methodology, and not a legal one, in analyzing the issue of marriage, which is known as structural functional perspective. The reason for selecting such approach is its comprehensive analysis. In fact, analyzing the crisis which the Arab family is facing and its legal- social frame, known as marriage structure, requires a comprehensive review and investigation which do not only cover its elements and internal relationships but covers also its legal frames and environmental factors influencing it. Hence, the structural functional methodology is the suitable approach in tackling the issue of family and marriage. In fact, this methodology includes processes, relationships, structures, roles, typical interactions, functions, trials for adaptation and change as well as the legal, social, spiritual-based concept, and ideological dimensions.

In a nutshell, this perspective gives a semi-comprehensive image which includes most of the research elements.

Third, the referential frame is the third element of this paper. This paper depends on the Islamic source as a referential frame. In fact, a precise specification is needed due to the misconception regarding all what is called “Islamic”. Thus, we mean by Islamic, here, the reference on which all the Islamic reflections and visions, including the jurisprudential reflections, depend. It is the reference which is deduced from the fundamentals of (Quran and Sunnah) especially those related to the holistic visions which the researcher believes to be the controller and the guide of all partial perspectives including the legal jurisprudential perspective.

Definition: Nikaḥ[2] Vs Marriage

Books of Fiqh tackle the issue of marriage and family as a whole under the title of “Kitab-u- An-Nikaḥ” (The Book of Nikaḥ). Islamic jurists (Fuqahā’) regard the concept of marriage and Nikaḥ as one. However, a great difference between both words affects the whole structure of the jurisprudential perspective on marriage. Whereas marriage, as a word and concept, reflects known social and legal significations, the word Nikaḥ, which linguistically means conjugal intercourse or joining together, transfers the issue from the scope of a social aspect into a direct personal and sensual aspect, affecting the whole system of the jurisprudential perspective on marriage.

Technically, Nikaḥ, according to jurists, has three meanings: (1) conjugal intercourse, or (2) marriage contract or (3) both conjugal intercourse and marriage contract.

Reflecting on the third mutual meaning and some of its definitions according to different schools of thoughts (Madhaheb), some Ḥanafi scholars define marriage as “a contract for the purpose of conjugal enjoyment”. Others argue that it is the ownership of the other to permit conjugal enjoyment; referring to a special access to a woman’s sexual parts.

Moreover, some Shafi’i scholars define Nikaḥ as a contract includes “the ownership of conjugal intercourse by the utterance of Inka or marriage or any other words conveying the same meaning.” This means that it permits sexual appetite. Hence, it is a contract of ownership. On the other hand, some of them argue it is a contract that permits conjugal intercourse, as it is a contract of permission not a contract of ownership.

Maliki scholars lessen the limits of the contract objective setting it as “a contract, with the presence of witnesses, legalizing conjugal intercourse with a female without setting her value in return. (To consider this contract as valid,) the person who effects this contract should not know that she is unlawful to marry, according to the Quran or Ijmaa’ (scholarly consensus). According to this definition of Ibn ‘Arafah Al-Maliki, the contract is just for conjugal intercourse and not ownership. In addition, Ḥanbali scholars said that it is a contract by the utterance of Inkaḥ or marriage for the purpose of sexual enjoyment.

In fact, the direct materialistic signification of marriage, as a purchase or a right of benefit or enjoyment of female’s sexual parts by a male, is reflected in the contractual spoken forms. For example, Ḥanafi scholars regard Nikaḥ as valid by uttering words holding the meaning of a gift, charity or ownership; when a woman says: “I am yours.”. Yet, they regard Nikaḥ by uttering the words of sale and purchase; when a woman says: “I sell myself to you for such (naming an amount of money),” with an intention of marriage, as controversial, yet, it is valid, according to the dependable opinion.

Definition Elaboration

These jurisprudential definitions raise many questions and comments doubting their validity or adequacy in delivering the true concept of marriage. We summarize these notes as follows:

First, definition, in its general sense, refers to the essence of the object defined or its function.

Second, according to the functional aspect, jurisprudential definitions, generally, focus on the sensual materialistic side by regarding marriage, as it is obvious, as having one specific function which is sexual enjoyment, unfairly omitting its other functions. Perhaps, this appears in the semantic usage of the two concepts of marriage as a social practice and Nikaḥ as a sexual intercourse.

Focusing on the limited definition of marriage a question is raised about the source on which Fiqh depend to deduce such concept. Others may refer to the Quranic Verse:

“وَالْمُحْصَنَاتُ مِنَ النِّسَاءِ إِلَّا مَا مَلَكَتْ أَيْمَانُكُمْ ۖ كِتَابَ اللَّهِ عَلَيْكُمْ ۚ وَأُحِلَّ لَكُم مَّا وَرَاءَ ذلكم أَن تَبْتَغُوا بِأَمْوَالِكُم مُّحْصِنِينَ غَيْرَ مُسَافِحِينَ ۚ فَمَا اسْتَمْتَعْتُم بِهِ مِنْهُنَّ فَآتُوهُنَّ أُجُورَهُنَّ فَرِيضَةً ۚ وَلَا جُنَاحَ عَلَيْكُمْ فِيمَا تَرَاضَيْتُم بِهِ مِن بَعْدِ الْفَرِيضَةِ ۚ إِنَّ اللَّهَ كَانَ عَلِيمًا حَكِيمًا”

And [also prohibited to you are all] married women except those your right hands possess. [This is] the decree of Allah upon you. And lawful to you are [all others] beyond these, [provided] that you seek them [in marriage] with [gifts from] your property, desiring chastity, not unlawful sexual intercourse. So for whatever you enjoy [of marriage] from them, give them their due compensation as an obligation. And there is no blame upon you for what you mutually agree to beyond the obligation. Indeed, Allah is ever Knowing and Wise,

(An-Nisaa’ (The Women): 24).

Obviously, this Verse does not define marriage, but offers a justification and interpretation of the Divine obligation on men to financially support women. This Verse addresses men and tries to facilitate for them this obligation by presenting the issue as a rightly guided mutual relationship; a win-win situation through which the more the one gives the more he receives. This Quranic Verse does not focus on the scope or objective of (sexual) enjoyment but widens its limitations for generalization; for a scope broader than the sensual and sexual enjoyment. It may refer to all female’s emotional, social and humanitarian devotion to her husband and family; abandoning her pursuit for livelihood. The Holy Quran uses, in other Verses, the concept of enjoyment without limiting it to its sensual meaning only but by referring to the most prestigious levels of spiritual enjoyment and sometimes by referring to the meaning of general benefit.

The jurisprudential definition of marriage neglects the social function of marriage which represents the core concept of marriage as a social system. The abovementioned marriage definitions focus on marriage as a sensual process; neglecting the fact that marriage is more than just a mere “process” of engaging in a conjugal intercourse, as it is a relationship, an institution and a system.

In this regard, we can refer to the variety of the social functions of marriage. Some of which are related to the societies’ cohesion by establishing relationships based on blood, consanguinity and affinity or what is known in sociology as the “kinship system” and its resulted comprehensive system of rights, commitments and rulings which the Holy Quran fully covers, maximizes and shows the importance of their application. Allah Almighty says:

“يَا أَيُّهَا النَّاسُ اتَّقُوا رَبَّكُمُ الَّذِي خَلَقَكُم مِّن نَّفْسٍ وَاحِدَةٍ وَخَلَقَ مِنْهَا زَوْجَهَا وَبَثَّ مِنْهُمَا رِجَالًا كَثِيرًا وَنِسَاءً ۚ وَاتَّقُوا اللَّهَ الَّذِي تَسَاءَلُونَ بِهِ وَالْأَرْحَامَ ۚ إِنَّ اللَّهَ كَانَ عَلَيْكُمْ رَقِيبًا”

O mankind, fear your Lord, who created you from one soul and created from it its mate and dispersed from both of them many men and women. And fear Allah, through whom you ask one another, and the wombs. Indeed Allah is ever, over you, an Observer,

(An-Nisaa’ (The Women): 1).

Among the principle social functions of marriage and family is reproduction or species recreation beside the attached necessities for protecting the new generation of mankind and providing it with a suitable shelter for its protection and growth, during its upbringing weak stage, beside the attached necessities for the processes of upbringing or development of the values and norms of the community; by rooting them in the hearts of the generation through upbringing process. Therefore, family plays a significant role in maintaining this social system and its values and identity as well as achieving its coherence. In addition, marriage system plays a pivotal role as one of the mechanisms of physical and value-based sustainability of mankind. Perhaps, the lack of these principal aspects in the definition of marriage or Nikaḥ encourages jurists to solve some of this shortcoming throughout the following chapters of Fiqh. For example, Ḥanafi scholars say: “The real purpose of marriage is, indeed, reproduction by which Ummah (Muslim nation) will be increased in number and fortified.”

Among the significant social functions of marriage and family is the function of social control of desires and sexual and emotional behavior which refers technically, in Islam, to the concept of chastity (Iḥṣan); which provides a social, legal and Shari’ frame for fulfilling the innate sexual desire and engaging in a pledged sexual intercourse and its results as giving birth. In fact, this is achieved in a way that blocks the evil means towards any sexual chaos which negatively affects the individual, family and society. In this regard, the Quranic Verse says:

“وَلَا تَقْرَبُوا الزِّنَا ۖ إِنَّهُ كَانَ فَاحِشَةً وَسَاءَ سَبِيلًا”

And do not approach unlawful sexual intercourse. Indeed, it is ever an immorality and is evil as a way,

(Al-Israa’ (The Night Journey): 32).

Furthermore, family and marriage system has significant financial functions; being for a long times in human history, among its other functions, a system of sustenance. Till a near period of time in human history, the majority of women worldwide was unemployed and had no pursuit for livelihood and was deprived from participation in wealth production and consequently income gain. Yet, many of our countries have been adopting the same attitude. Thus, it has been necessary to create a social and legal system for financially supporting the second half of human beings. Hence, marriage system fulfills this function being one of its significant functions. Although supporting women financially, as a social request, witnessed a radical transformation due to women’s education and participation in career and business fields, the function of marriage system, as a financial supporting system, is still in effect, whether in fulfilling the duty of supporting children and vulnerable generation or a huge sect of unemployed women regularly or temporarily during the period of pregnancy and postpartum care. Moreover, marriage plays a significant role in the process of wealth distribution through the inheritance system.

The social functions are associated with the system’s psychological functions; such as emotional fulfillment and the feeling of safety. In fact, the family represents a fence providing the individual with psychological and social protection and safety and a circle of safe social interaction. The Holy Quran emphasized such role of marriage through referring to the role of marriage in providing tranquillity, affection and mercy, as Allah Almighty says:

“وَمِنْ آيَاتِهِ أَنْ خَلَقَ لَكُم مِّنْ أَنفُسِكُمْ أَزْوَاجًا لِّتَسْكُنُوا إِلَيْهَا وَجَعَلَ بَيْنَكُم مَّوَدَّةً وَرَحْمَةً ۚ إِنَّ فِي ذَٰلِكَ لَآيَاتٍ لِّقَوْمٍ يَتَفَكَّرُونَ.”

And of His signs is that He created for you from yourselves mates that you may find tranquility in them; and He placed between you affection and mercy. Indeed in that are signs for a people who give thought,

(Ar-Rum (The Romans): 21).

Different attributes can be added to the previous ones for the marital and parenthood relationships described by the Holy Quran through various concepts such as benevolence and kindness.

Therefore, the magnitude of the shortcoming of the jurisprudential definition of marriage is crystal clear as well as its failure in realizing the significant social, psychological and emotional or moral functions which Islam recognizes and places as the core of the objectives, and goals and functions of marriage system. Summarizing the dilemma of the jurisprudential definition of marriage in terms of its function in one sentence, can briefly be that the jurisprudential definition presents marriage simply as a process, yet, marriage is a relationship which creates an institution playing a pivotal role in establishing a whole system.

The sensual materialistic concept of marriage, adopting the spoken form showing that “male ownership of women’s sexual parts is by paying the prescribed marital support“, is reflected in all the chapters and issues of Fiqh An-Nikah (Fiqh of Marriage). Instead of focusing on the interactive, behavioral and social dimension in the marital relationship and instead of applying the concepts of benevolence, graciousness, affection, mercy and consultation mentioned in the Holy Quran, the issue of the conjugal intercourse and financial support becomes a central issue in the Fiqh of marriage. Therefore, many studies are dedicated for their discussion such as doubtful intercourse (Waṭ ‘ Ash-Shubhah: engaging in a sexual intercourse with a woman mistakenly without knowing that she is not his wife), Kholwah (when a woman stays alone in a closed place with a strange man not among her unmarriageable kins), the invalid marriage, the secret dowry, if the husband fails to pay the dowry, if the dowry is an individual article (object) and was affected by an increase or a decrease, the dowry conditions, the deferred and immediate dowry, the disposal of the dowry by the two spouses allocating it as a gift or for sale…etc.

In conclusion, despite of the significance of the materialistic and sensual issues in the marriage system, it does not represent the most important pillar exceeding the other spiritual, social, moral and behavioral dimensions in the marriage institution and system presented by Fiqh of Nikaḥ.

Third, from the formal side which focuses on Nikaḥ as a contract, the most obvious feature in the definition of Nikaḥ technically is the lack of fairness in the contract; not regarding it a relationship between two parties with mutual equal interests. Instead, it builds a unilateral perspective that focuses on the man’s interest from the marriage contract. Jurisprudentially, man is the ultimate beneficiary, while woman is just the subject of the contract or the beneficial object and not a contractual party enjoying an equal will and interest. This is to the extent that her enjoyment (or benefit), from the sensual side which is a marriage pillar, is just recommended and not obligatory.

In fact, jurists regard the main objective of the contract is to achieve man’s enjoyment as he is the objective and the beneficiary. On the other hand, woman’s enjoyment is a virtue; as Ash-Shafee’ said that the most dependable opinion shows that the subject of the contract is the woman; referring to a special access to a woman’s sexual parts. According to this opinion, she has no right to oblige him to satisfy her sexual needs, because it is his own right, but it is recommended for him to enable her to keep chaste. The other opinion, claiming that the subject of the contract is the two spouses, that allows her to oblige him to satisfy her sexual needs is not dependable. Ḥanafi scholars say that the right of sexual enjoyment is for the man not the woman. This means that he alone has the right to oblige her to satisfy his sexual needs, while she has the right to do so but only once. However, he should, religiously with no obligation, enable her to keep chaste to protect her from immorality.

This biased unilateral perspective also explicitly appears in the jurists’ analysis of the contract dimensions, such as the integrals and conditions of Nikaḥ. Maliki scholars set five integrals of the marriage contract which are: the guardian of the bride, the dowry, the groom, the bride (free from marriage impediments) and the spoken form. Maliki scholars believe that there are two contracting parties which are the groom and the guardian, while the woman is the subject of the contract just like the dowry; which means that it is in the state of the object and not the subject although she is one of the contract integrals.

Contemporary Efforts and Attempts towards a New Definition

The issue of amending or reviewing any part of the jurisprudential heritage is not a piece of cake, because the jurisprudential heritage presents a full-fledged system which includes the perspective or vision related to human and the world (even if it is neglected) till reaching the detailed Rulings. Firstly, this means that amendments or reviews of Fiqh should depend on a comprehensive movement to resume or re-open the door of Ijtihad . Secondly, this movement should present a new/ different paradigm or perspective of the issue of human in Islam and then his relationship with the world (the earthly life and the hereafter) and the society and his life purpose. Despite of the re-current demand for re-opening the door of Ijtihad or similar demands, such as demands for the renewal of the Islamic thought and so on, the issue seems to be more complex and difficult especially at the middle of an age witnessing a huge confusion in the difference between Fiqh as a man-made production and the Islamic references and fundamentals, the Quran and authentic Prophetic Tradition (Sunnah) and their prescribed Legislation and Rulings.

Arguably, over two hundred years, since the beginning of the modernization process and the appearance of the duality and paradoxes between the modern and the ancient and its differences in reality and consciousness, only two attempts, in the field of jurisprudential Ijtihad, appeared.

The first one is the individual attempts which did not develop into a thought or a movement. For example, among those individuals, in the Sunni Fiqh, are prominent scholars in Egypt like Muhammad Abdo, Abdul-Wahab Khalāf and Muhammad Abu Zahrah. Such attempts were cautious and partial, as they did not depend on a different comprehensive vision but on some partial amendments which were not presented as a new Fiqh but an addition to the heritage with some amendments. Although many of those diligent scholars belong to Al-Azhar, their personal reasonings remained individual, as Al-Azhar, the central foundation, did not participate in the process of Ijtihad, and till nowadays maintaining its conservative and imitation stance with no renewal.

The second one is the Fiqh of the state (or state constitution). It is a Fiqh necessary for the contemporary Arab state to issue legislation, and directly face contemporary challenges, such as international pressures and social and financial changes and crises, and allow state authorities to collect all data concerning the real life and its crises, a procedure which cannot be applied by the scholars individually, and finally, harmonize between the culture of the society and its necessary needs. Thus, we can conclude that the “Fiqh of the state” is the broadest and important field of the contemporary jurisprudential Ijtihad, despite of the confusion in the difference between jurisprudential practice, depending on (Divine) Sources in deduction, and man-made legislation representing the global tendency in the stage of modernity.

Accordingly, two prominent models or attempts can be introduced for redefining marriage as an issue. In fact, Definition is not a minor process but a premise on which all the system of personal status is based.

First: A model presenting the individual attempts of Muhammad Abu Zahrah in re-defining marriage from a jurisprudential perspective

Abu Zahrah, first, criticized the jurisprudential definitions mentioned by the jurists of the four schools of thoughts which define marriage, regarding its main objective, as ownership and permission for sexual enjoyment. In contrary, he believes that Islam does not approve marriage because of the aim to fulfill the humanitarian (sexual) appetite only but to achieve social, psychological and religious purposes. He believes that the said jurisprudential definition may refer to one of the objectives of people from marriage or the most important objective for some of them. Yet, this is not the objective of the Legislator and not the most important objectives for the high-minded virtuous people and not the uppermost for all the scholars….In fact, the uppermost objective, according to Shariah (The Sacred Law of Islam) and intellectual wise people, is reproduction and protection of human species, as well as the achievement of spiritual delight between the two contracting parties that gathers them together and acts as a shelter of relief amidst all the hustle and bustle of life and its hardships. Allah Almighty says:

وَمِنْ آيَاتِهِ أَنْ خَلَقَ لَكُم مِّنْ أَنفُسِكُمْ أَزْوَاجًا لِّتَسْكُنُوا إِلَيْهَا وَجَعَلَ بَيْنَكُم مَّوَدَّةً وَرَحْمَةً ۚ إِنَّ فِي ذَٰلِكَ لَآيَاتٍ لِّقَوْمٍ يَتَفَكَّرُونَ.”

“And of His signs is that He created for you from yourselves mates that you may find tranquility in them; and He placed between you affection and mercy. Indeed in that are signs for a people who give thought”,

(Ar-Rum (The Romans): 21).

Abu Zahrah, the prominent scholar, adds: “If the definitions of jurists do not reveal the objective of the said contract as intended by the Legislator, it should be explained through a definition stating its reality and objective as intended by the Legislator and according to wise men.” Abu Zahrah presents his definition believing it to be free from the shortcomings of the previous definitions saying that marriage is: “A contract legalizing companionship between man and woman; achieving the needs of humanitarian nature and their cooperation during their lifetime and determining the rights and duties of both of them.”.

A Commentary on Abu Zahrah’s Definition

Despite of the development appeared in this definition through his attempt to take marriage out of the scope of sexual intercourse and the dualism in the concept of male ownership of women’s sexual parts in return for the payment of the prescribed marital support, this definition has some shortcomings:

First, the continuity of adopting a personal approach and not a social one concerning marriage by regarding it as a relationship between two parties.

Second, the lack of the free will of the two contracting parties in entering the contract is a very significant dimension for woman concerning the recognition of her full character and legal eligibility from which she is deprived. This is appeared in the opinions of some schools of thoughts by setting the guardian’s approval as among the conditions of a valid contract. This is to the extent that it is permissible for the guardian to oblige the immature girl and the virgin to marry without her consent.

Third, the definition is distinguished by adding some spiritual and behavioral features (beside the sensual) to marriage such as cooperation. Yet, it lacks other elements explicitly prescribed in the Quran and their addition leads to a change and even an improvement to the concept of marriage as a whole, such as consultation, goodness, benevolence, affection and mercy and etc.

An Example of the Fiqh of the State: Moroccan Personal Status Code and Its Definition of Marriage

The legal efforts of the state and its issued legislations regarding personal status did not find a thorough study by a specific school of Fiqh to depend on in modernizing Fiqh of family and personal status according to the social reality and its developments. Thus, it adopted a comprehensive practice of personal reasoning whether depending on Qiyas (analogical deduction) or Ijtihad by considering the interest and fulfilling the objectives of the Legislator. This is achieved through the keenness of the modern state in most of Muslim countries to keep personal status and rulings of family within the scope of the Islamic Shariah.

Perhaps, this negligence reflects many significations among which are the doubt towards the modern state in the eyes of religious people and the religious institution, because it does not reflect an Islamic authority based on Shari’ perspective but an authority of the one who has the upper hand. Moreover, this negligence reflects the continuity of the guardianship and monopoly of the Shari’ issues by the religious institution, as what is not issued or ratified by the religious institution is not regarded as among the Shari’ Rulings.

Among the most significant personal status laws, holding the previous features and acting as an advanced personal attempt to develop Fiqh of marriage and family, is the Moroccan Personal Status Code issued in 2004. This law, through its preamble, mentions the Shari’ fundamentals followed in deducing its rulings. According to this methodology, law adopts many reason-based means, among which is the expansion of the scope of deduction till considering Quranic Verses which the jurisprudential heritage did not insert among the Rulings Verses such as:

…فَإِنْ خِفْتُمْ أَلَّا تَعْدِلُوا فَوَاحِدَةً…”

“…But if you fear that you will not be just, then [marry only] one…”,

An-Nisaa’ (The Women): 3,

and

وَلَن تَسْتَطِيعُوا أَن تَعْدِلُوا بَيْنَ النِّسَاءِ وَلَوْ حَرَصْتُمْ…”

“And you will never be able to be equal [in feeling] between wives, even if you should strive [to do so]…”

An-Nisaa’ (The Women): 129.

Through these two Verses, Rulings to limit the absolute right in polygyny and divorce are deduced and added to this law.

Furthermore, among the means of Ijtihad is the activation of some general jurisprudential principles and objectives in Rulings deduction. The law, through its preamble, articulated that reformations set by the law, depending on the “the Islamic objectives in honoring human and achieving justice, equality and tender companionship and the unity of Maliki school of thought, to set a contemporary code for a family following the true religion: Islam.

Moreover, the Code depends mainly on the reasonings of other schools of thoughts such as the Ḥanafi school of thought especially in the issue of the self-guardianship for a woman of a good judgment.

Regarding the definition of marriage, the Code offers an advanced definition of marriage in its Article No. (4) stating that marriage is: “A legal contract of consent and connection between man and woman during their conjugal life. Its purpose is chastity and the establishment of a stable family under the supervision of both spouses, according to the rules of this Code”.

This definition has many strength points. First, it emphasizes the contractual element which is built on consent in establishing the marital connection. Second, it raises the personal and private dimension from the sensual materialistic level, represented in the process of conjugal intercourse focused by the jurists in their definitions, to the level of emphasizing the Islamic objective of this sensual process; which is chastity. Third, it demonstrates the social dimension of the marriage beside the personal dimension by emphasizing that the purpose of the marriage is to establish a family. Fourth, the merit which is considered to be a turning point in the concept of marriage itself is articulating that running family affairs is the responsibility of both spouses; affirming the concept of sharing responsibilities.

Despite of these strength points, there are two important commentaries on the definition offered by the Code. First, there is a lack in merging between the spiritual and emotional elements as an integral part of the subject and objective of marriage, as mentioned by the Quran by referring to affection, mercy and tranquility between both spouses. In fact, the legal mindset which sets rulings and legislations doubts the issue of the emotional dimension of marriage. This is because the law, naturally, focuses generally on the materialistic events which can be proved, verified or nullified and avoids unattainable spiritual elements.

However, this legal rule, like any other rules, has exceptions among which, and the most important, is the issue of marriage, which is mainly built on emotional and humanitarian dimensions, as without them one of its significant objectives will not be achieved. Actually, Fiqh is not a mere law, but it is Shari’ rulings deduced from religion and gains which, beside its legal element, has a pivotal element based on morals, and spiritual and value-based matters.

However, inserting the spiritual dimensions as a principal element in marriage arouses other dilemmas regarding proving or negating the existence of these elements when seeking the judiciary court. Indeed, there are many cases that cannot be proven. In such cases, Shariah (The Sacred Law of Islam) depends in judging on the religious conscience and hereafter court such as in the case of public imprecation (by a man) and a release for payment by a woman.

The second dilemma in the definition offered by the Code is the negligence of the man’s responsibility to provide financial support as one of the prescribed rights of women in Islam. In fact, this negligence reflects the huge influence of the western view which believes that the responsibility of both spouses in managing family affairs requires their cooperation in marital financial gains and losses. Yet, this vision is a pie in the sky, because man’s responsibility to provide his family with financial support is not out of generosity but justice. Firstly, this is because woman plays a pivotal role in providing her family with spiritual, emotional and social care even if she does not support them financially. Secondly, she bears a huge burden, such as pregnancy, birth-giving and breastfeeding, which is not less than the burden of financial support. Allah says:

“…حَمَلَتْهُ أُمُّهُ كُرْهًا وَوَضَعَتْهُ كُرْهًا…”

“…His mother carried him with hardship and gave birth to him with hardship…”

Al-Aḥqāf (The Sand Dunes): 15).

In fact, this burden is not a financial loss but a loss affecting soul and body. Thirdly and importantly, performing all these roles beside her biological role in pregnancy and breastfeeding deprives many women from their pursuit for livelihood. Therefore, exempting man from the burden of financial support imposes an overload on woman and does not fairly distribute responsibilities.

Accordingly, we can suggest, at the end of this research, some amendments in the definition of marriage that depends on the strength points of the Moroccan Code; overcoming the shortcomings mentioned, and that assures, at the same time, the importance of the social dimension and the equality between both spouses; their free will and benefit from establishing a marital relationship. Thus, the definition is as follows:

“Marriage is a contractual relationship between man and woman, through which the two parties, by their own (or by their commissioned persons) agree upon establishing a family. According to this relationship, both parties have rights and duties such as keeping chaste, coexistence, and tender companionship depending on affection and mercy. As a result, the husband is responsible to provide his wife and children with financial support according to the basis of Shariah and what are agreed upon by both parties.”

Finally, it is important to emphasize the idea that reforming the marriage system relies on the renewal of Fiqh of marriage. In fact, the renewal of Fiqh of marriage is achieved by collecting and merging between the social, moral and humanitarian dimensions which compose an integral part of its Quranic concept adopted in the definition, and what is resulted from determining the conditions and rules of marriage.

In addition, reforming the marriage system is achieved by assuring the concept of the free will of both parties to enter into a marriage contract. Dealing with woman as an effective party and not the subject of the marriage contract refers to a huge qualitative shift which fairly treats women and revives the issue of social equality and justice. Most importantly, it helps in reviving the idea of human rights in the Islamic system and negating the misconceptions originated from the influence of social traditions and cultures, which are known for their rigidity, racism and discrimination, on this great system through Fiqh.

And upon Allah is the direction of the right path

***

Translated by: Rehab Jamal Bakri

Egyptian Researcher and Translator.

Revised by: Prof: Neamat Mashhour

Professor of Islamic Economics and Islamic Finance.

Faculty of Commerce, Al-Azhar University.

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Citations:

* The Article was Published in AL Muslim AL muassir Magazine, Issue 165 (2020). PP. 313- 333.

[1] Quranic Translation Reference: Sahih International (https://qurano.com/)

[2] Translator’s Note: Nikaḥ (نكاح), an Arabic word derived from the root (N-k-ḥ), refers probably to conjugal intercourse, but it is used in the Quran exclusively to refer to marriage contract. In this paper, the word Nikaḥ is used beside marriage to focus on the concept of the consummation of marriage and conjugal intercourse.

References:

  • أحمد بن تيمية (1987). فتاوى النساء/ تحقيق أحمد السايح، السيد الجميلي. ط. 1. القاهرة: دار الريان للتراث.
  • عبد الرحمن الجزيري (د. ت.). الفقه على المذاهب الأربعة. ج. 4، قسم الأحوال الشخصية. كتاب النكاح. القاهرة: دار الإرشاد للطباعة والنشر.
  • مالك بن أنس (د. ت.). الموطأ/ صححه ورقمه وخرج أحاديثه وعلق عليه محمد فؤاد عبد الباقي. القاهرة: كتاب الشعب.
  • محمد أبو زهرة (د. ت.). محاضرات في عقد الزواج وآثاره. القاهرة: دار الفكر العربي.
  • يوسف حامد العالم (د. ت.). المقاصد العامة للشريعة الإسلامية. القاهرة: دار الحديث.
  • Harry M. Johnson (1971). The Structural-Functional Theory of Family and Kinship. Journal of Comparative Family Studies. 2 (2). PP. 133- 144.

عن رحاب جمال بكري

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