Women's Rights in Islam by Dr. Muhammad Sharif Chaudhry (Chapter 5)


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By Dr. Muhammad Sharif Chaudhry



Rights Regarding Marriage


  1. Injunctions of the Qur'an

  2. Ahadith of the Holy Prophet

  3. Rights in the Light of Qur'an and Hadith

  4. Views of the Scholars

  5. Islamic Law and Figh

  6. Law in Pakistan

  7. Marriage in Other Societies and Reforms by Islam


The injunctions of the Holy Qur'an about the rights of woman pertaining to marriage, as contained in its various verses, are quoted as follows:

  1. A .divorce is only permissible twice: after that, the parties should either hold together on equitable terms or separate with kindness. It is not lawful for you, (Men), to take back any of your gifts (from your wives). Except when both parties fear that they would be unable to keep the limits ordained by Allah. If ye (judges) do indeed fear that they would be unable to keep the limits ordained by Allah, there is no blame on either of them if she gives something for her freedom. (2:229)

  2. When ye divorce women, and they fulfil the term of their (‘Iddat), do not prevent them from marrying their (former) husbands, if they mutually agree on equitable terms. This instruction is for all amongst you, who believe in Allah and the last day. That is (the course making for) most virtue and purity amongst you, and Allah knows, and ye know not. (2:232)

  3. If any of you die and leave widows behind, they shall wait concerning themselves four months and ten days: When they have fulfilled their term, there is no blame on you if they dispose of themselves in a just and reasonable manner. And Allah is well acquainted with what ye do. (2:234)

  4. If ye fear that ye shall not be able to deal justly with the orphans, marry women of your choice, two, or three, or four; but if ye fear that ye shall not be able to deal justly (with them), then only one, or (a captive) that your right hands possess. That will be more suitable, to prevent you from doing injustice. (4:3)

  5. And give the women (on marriage) their dower as a free gift; but if they, of their own good pleasure, remit any part of it to you, take it and enjoy it with right good cheer. (4:4)

  6. Prohibited to you (For marriage) are:‑ Your .mothers, daughters, sisters; father's sisters, Mother's sisters; brother's daughters, sister's daughters, foster‑mothers (who gave you suck), foster‑sisters; your wives' mothers; your step‑daughters under your Guardianship, born of your wives to whom ye have gone in,‑ no prohibition if ye have not gone in;‑ (Those who have been) wives of your sons proceeding from your loins; and two sisters in wedlock at one and the same time, except for what is past; for Allah is Oft‑Forgiving, most Merciful;‑

Also (prohibited are) women already married, except those whom your right hands possess. Thus hath Allah ordained (prohibitions) against you; except for these, all others are lawful, provided ye seek (them in marriage) with gifts from your property,‑ Desiring chastity, not lust, seeing that ye derive benefit from them, give them their dowers (at least) as prescribed; but if, after a dower is prescribed, ye agree mutually (to vary it), there is no blame on you, and Allah is All‑Knowing, All‑Wise. (4:23‑24)

  1. Men are the protectors and maintainers of women; because Allah has given the one more (strength) than the other, and because they support them from their means.

Therefore the righteous women are devoutly obedient, and guard in (the husband's) absence what Allah would have them guard. (4:34)

  1. This day are (all) things good and pure made lawful unto you. The food of the People of the Book is lawful unto you and yours is lawful unto them. (Lawful unto you in marriage) are (not only) chaste women who are believers, but chaste women among the People of the Book, revealed before your time,‑ when ye give them their due dowers, and desire chastity, not lewdness, nor secret intrigues. If anyone rejects faith, fruitless is his work, and in the Hereafter he will be in the ranks of those who have lost (all spiritual good). (5:5)

  2. Marry those among you who are single, or the virtuous ones. among your slaves, male or female; if they are in poverty; Allah will give them means out of His grace; for Allah encompasseth all. And He knoweth all things. (24:32)

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Traditions of the Prophet of Islam on the subject of woman's rights regarding marriage are as follows: ‑

  1. Abu Hurairah reported that the Messenger of Allah said: A previously married woman shall not be married till she gives consent, nor a virgin be married till her consent is sought. They asked; How shall be her consent? He said: If she remains silent. (Bukhari and Muslim)

  2. Abu Hurairah reported that the Prophet said: A grown ‑up girl shall be asked permission about herself. If she is silent, it is her permission and if she declines there shall be no compulsion on her. (Tirmizi, Abu Daud, Nisai)

  3. Jaber reported that the Messenger of Allah said: when one of you seeks a woman in marriage and then if he is able to have a look at whom he wishes to marry, let him do. (Abu Daud)

  4. Anas reported that the Messenger of Allah noticed 'a sign of yellow colour on Abdul Rahman‑b‑Auf. He asked: What is this? He replied: I have married a woman for a measure of 5 dirhams of gold. He said: May Allah bless you. Give a feast even though with a goat. (Bukhari, Muslim)

  5. Ibn Abbas reported that a virgin grown‑up girl came to the Messenger of Alla"i and narrated that her father had given her in marriage, which was disliking to her. The Messenger of Allah gave her option. (Abu Daud)

  6. Ali reported that the Messenger of Allah prohibited Mu'ta marriage (temporary marriage) with women on the day of Khaiber .... (Bukhari and Muslim)

  7. 7. Meswar-b‑Makhramah reported that Sobaiata al Aslamiyah was subject of blood after childbirth for some nights after the death of her husband. She came to the Prophet and sought his permission to get married. He gave her permission and then she was remarried. (Bukhari)

  8. 8. Ibn Omar reported that the Apostle of Allah forbade Shigar, and Shigar is a man giving his daughter in marriage on condition that another would give his daughter in marriage to him; and that there would be no dower between them... (Bukhari, Muslim)

  9. Ayesha reported that toe Apostle of Allah said: Whatever is unlawful by reason of consanguinity is unlawful by reason of fosterage. (Bukhari)

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Rights conferred on a Muslim woman pertaining to marriage are discussed in the light of the Qur'an and Sunnah of the Prophet (PBUH) as under:‑

  1. A Woman has got as much right to marry as a man has. The Qur'an says. "Marry those among you who are single"‑(24:32). The Arabic word Ayyama' means single or solitary. A single person, may be a man or a woman, should be married. He or she may be single on account of having not yet married or on account of dissolution of his or her marriage by divorce or by death of the other spouse. Whatever may be the reason for being single, he or she has the right to marry or remarry. Even poverty is no excuse or justification to keep an unmarried man or woman away from marriage, as the Qur'an says in .this very verse "If they are in poverty, Allah will give them means out of His grace."

  2. The woman has‑been granted as much freedom in the choice of her husband as the man has been granted in choosing his wife. Nobody has any right to give her away in marriage without her consent. A tradition reported by Abu Hurairah in Bukhari and Muslim states that the Prophet (May Allah's peace be upon him) said: "A previously married woman (whose marriage is dissolved) shall not be married till she gives consent nor a virgin be married till her consent is sought... and, her silence is her consent." No compulsion or coercion can be exercised to force a woman into marriage.

  3. A minor girl, when given in marriage by her guardian, has the option to repudiate the marriage when she attains puberty. The Prophet of Islam annulled the marriage of a girl who had been given ire marriage by her father, since she disliked it (Bukhari). However, repudiation must be made immediately after she attains puberty and before cohabiting with the husband.

  4. Islam permits a divorcee or a widow to remarry. Al­Qur'an says: "And when you have divorced women and they reach their term, place not difficulties in the way if their marrying their husbands"‑ (2:232). About the widow's right of second marriage the Qur'an says, "When they have fulfilled their term, there is‑ no blame on you if they dispose of themselves in a just and reasonable manner‑" (2:234) According to a Tradition reported in Bukhari, Prophet Muhammad (May Allah's peace be upon him) permitted a widow Sobaiata‑al‑Aslamiyah to contract second marriage.

  5. Islam confers an unfettered right on a woman to obtain dower from her husband. The Qur'an says: "And give the women (on marriage) their dower as a free gift"‑ (4:4) For details see chapter on dower.

  6. Islam also gives the right to, a woman to seek divorce from her husband, e.g., by Khula or by dissolution of marriage in certain situations. For details see chapter on divorce.

  7. The woman is entitled to have maintenance from her husband. See chapter on maintenance; for details.

  8. Prohibited degrees of marriage (where man and woman cannot marry on account of close relationship or on account of certain legal disability) have been mentioned in the Qur'an in the verses, 22, 23, 24 and 25 of its chapter 4. The Prophet of Islam also prohibited the union of males with certain females in some situations.

  9. Prophet Muhammad (May Allah's peace be upon him) prohibited temporary marriages (Mu'ta) and exchange marriages (Shigar), thus protecting the rights of females against evil and oppressive customs.

  10. Woman also enjoys certain rights and protection in case of her husband's polygamy. For details, please see chapter on polygamy.

  11. A Muslim male is permitted to marry a woman of those who received the scripture ‑ Ahle Kitab like Jews and Christians. (Al‑Qur'an 5:6)

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Views of some eminent scholars regarding mutual rights of the contracting parties in marriage are cited as under:‑

  1. Maulana Fazl‑ul‑Karim, in ‘Al‑Hadith', writes about Marriage in Islam. "A Muslim marriage is a civil contract based on mutual consent of the bride and bridegroom, as distinguished from the sacramental form of marriage. Most of. the incidents of contract are consequently applicable to such a marriage, for example, consideration of marriage in the form of dower, breach of the contract by divorce, giving of legal rights and obligations on the contractual parties, and bestowing `no greater power on the husband than what the contract provides in a lawful manner. A Muslim marriage requires no priest and no sacramental rights. At best, the registration of mutual consent may be done: A woman has got absolute right in her acquired properties before and after her marriage. In addition, she has a distinct lien upon her husband's property for her ante‑nuptial settlements."

  2. Abdul Hamid Siddiqi writes about the institution of marriage. "Marriage is a social institution as old as the human race itself. It may be defined as a relation between a man and a woman which is recognised by custom or law and involves certain rights and duties, both in the case of the parties entering the union, and in case of the children born of it. Marriage has thus two main functions to perform: it is the means adopted by human society for regulating relations between the sexes; and it furnishes the mechanism by means of which the relations of a child to the community is determined."

  3. Justice (retired) Aftab Hussain in his book "Status of Woman in Islam", writes: "Regarded as a social institution, marriage, under the Muslim Law is essentially a civil contract. Its validity depends upon proposal on one side and acceptance by the other. The law does not insist upon any particular form in which the contract should be effected and completed. Before the promulgation of the Family Laws Ordinance which provides for compulsory registration of marriage it was not necessary in Pakistan that the union should be evidenced by any writing.

A marriage‑contract, as a civil institution, rests on the same footing as other contracts. The parties retain their personal rights against each other as well as against strangers; and according to the majority of schools, have power to dissolve the marriage tie, should circumstances render this desirable."

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Rules and regulations of marriage and mutual rights of the husband and wife under the Islamic Law and Fiqh are:

  1. Nikah, Or Agd which is the Arabic word equivalent of English word "marriage", means uniting or union. Marriage has been defined in various ways. According to Hedaya, "Marriage is a legal process by which the sexual intercourse and procreation and legitimation of children between man and woman is perfectly lawful and valid." In the words of Ameer Ali, "marriage under Muhammadan law is essentially a civil contract. Its validity depends on, proposal on one side and acceptance on the other". According to Baillie's . digest, "marriage ‑is a contract for the purpose of legalising sexual intercourse and procreation of children." Mahmood J. observes: "Marriage according to Muhammadan Law is not a sacrament but a civil contract. All the rights and obligations it creates arise immediately and are not dependent on any condition precedent such as the payment of ‑dower by a husband to wife" Mulla says: "Marriage is defined to be a contract which has for its object the procreation and legalising of children."

  2. Every adult Muslim of sound mind can enter into a marriage contract. The contracting parties must be acting under their free will and consent. When consent to a marriage has been obtained by force or fraud, the marriage is invalid unless it is ratified. Where consent to the marriage has not been obtained, consummation will not make the marriage valid. Lunatics and minors may' be validly married through their guardians. Views differ regarding the age of puberty. Abu Hanifa fixes the age of puberty in case of boys at 18 years and in case of girls at 17 years: According to Abu Yusuf, it is >15 years for both. Hedaya places the earliest period of puberty in respect of .a boy at 12 years and in respect of a girl at 9 years. The Child Marriage Restraint Act, 1929, has fixed the age of puberty for male at 18 years and for female at 16 years.

  3. Essentials of a marriage have been beautifully laid down by Mulla in these words: It is essential to the validity of a marriage that there should be a proposal made by or on behalf of one of the parties to the marriage, and an acceptance of the proposal by‑:or on behalf of the other, in the presence or hearing of two male or one male and two female witnesses, who must be sane and adult Muhammadans. The proposal and acceptance must both be expressed at one meeting; a proposal made at one meeting and. an acceptance made at another meeting do not constitute a valid marriage. Neither writing nor any religious ceremony is essential. However in Pakistan, marriage is to be registered with Nikah Registrar under Sec. 5 of the Muslim Family Laws Ordinance, 1961. According to Shia Law, witnesses are not necessary at the time of marriage but they are required at the time of divorce. Another important essential of a valid marriage is that the female with whom a male wants to marry should not be one among the prohibited degrees of marriage on the basis of consanguinity, affinity or fosterage.

  4. A Muslim male can contract a marriage with a Kitabia woman i.e. Jew or Christian. But a Muslim woman cannot marry a Kitabi man i.e. Christian or a Jew; she can only marry a Muslim. However a Muslim male or female cannot marry a non‑believer or idolater.

  5. A valid marriage confers upon the wife right of dower, maintenance and residence in her husband's house. She has also right to visit or be visited by her blood relations. However, it imposes on her the obligation to be faithful and obedient to her husband, to admit him to sexual intercourse and to observe the Iddah on dissolution of marriage by divorce or husband's death. It also creates between the parties prohibited degrees of relationship and reciprocal rights of inheritance. So a valid marriage creates mutual rights and obligations for both the husband and wife.

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I. The Muslim Family Laws Ordinance, 1961, requires the registration of marriages. Section 5 of this Ordinance reads:

(1) Every marriage solemnized under Muslim Law shall be registered in accordance with the provisions of this Ordinance.

(2) For the purpose of registration of marriages under this Ordinance, the Union Council shall grant licences to one or more persons, to be called Nikah Registrars, but in no case shall more than one Nikah Registrar be licensed for any one ward.

(3) Every marriage not solemnized by the Nikah Registrar shall, for the purpose of registration under this Ordinance, be reported to him by the person who has solemnized such marriage.

(4)  Whoever contravenes the provisions of subsection (3) shall be punishable with simple imprisonment for a term which may extend, to three months, or with fine which may extend to one thousand rupees, or with both.

2. The Dowry and Bridal Gifts (Restriction) Act, 1976 was passed in 1976 to restrict the evil of Jahez (dowry) which is basically a Hindu Custom but unfortunately it is firmly established in our society with the result that it has become extremely difficult for a man of average means to wed his daughters: The Act provides:‑

(1) Neither the aggregate value of dowry and presents given to the bride by her parents nor the aggregate value of bridal gifts or of presents given to the bridegroom shall exceed five thousand rupees (Sec. 3)

(2)  All property given as dowry or bridal gifts and all property given to the bride as a present shall vest absolutely in the bride and her interest in the property however derived shall hereafter not be restrictive, conditional or limited. (Sec. 5) .

(3) The total expenditure on a marriage, excluding the value of dowry, bridal gifts and presents, but including the expenses on mehndi, baarat and walima, incurred by or on behalf of either party to the marriage shall not exceed two thousand and five hundred rupees (Sec. 6)

(4)  The parents of each party to a marriage shall furnish to the Registrar lists of dowry, bridal gifts and presents given or received in connection with the marriage. [Sec. 8(1)]

(5)  The parents of each party to a marriage shall furnish to the Registrar the details of expenditure incurred by them on the marriage within one week. [Sec. 8(4)]

(6)   Whoever, contravenes or fails to comply with, any provision of this Act or the rules made thereunder, shall be punishable with imprisonment of either description for a term which may extend to six months, or with fine which may extend to ten thousand rupees or with both, and the dowry, bridal gifts or presents given or accepted in contravention of the provisions of this Act shall be forfeited to the Federal Government to be utilized for the marriage of poor girls in such a way as may be prescribed by rules made under this Act. (Sec. 9)

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All societies have rules or shared patterns of behaviour that regulate sexuality, birth and child rearing. Marriage is the institution that encompasses these rules and patterns of behaviour[1].

There are various forms of marriage. Monogamy is a marriage‑ between two individuals, one male and one female. Polygamy is marriage between three or more individuals. If one male is married to more than one female it is polygamy. If one female is married to more than one male it is known as polyandry. In case of group marriage, two or more males are married to two or more females. Exogamy is marriage outside group, while marriage within the group is known as endogamy.

The institution of marriage has existed in one form or the other throughout human civilisation. Various customs and rituals have come to be associated with marriage. Among the warlike tribes of the antiquity there was a custom of wife capture whereby a woman was captured forcibly and made wife against her and her family's will. Much social and military honour was attached to this form of marriage. System of wife purchase was prevalent in many societies and it survives even today in some societies. It was there in Roman civilization and under many others. According to the system, a woman was purchased and made wife. This system also helped the development of polygamy among the affluent classes. In some societies like Hindu society, substantial amount of Jahez or dowry is given by the family of the bride to the bridegroom. Since the Hindu customary law deprives the daughters from inheritance, the daughters are given huge dowries at the time of their marriage. Among some nations, marital arrangements provide for the exchange of women without any payment. One man gives his sister in marriage to the other man who gives his sister in marriage to him.

In many communities of the world a system of arranged marriages exists in which choice of the bridegroom and bride does not matter, neither their consent is taken particularly that of the bride. In some cases even the groom and the bride have not seen each other before marriage and they meet each other for the first time at the wedding ceremony. In almost all societies, marriage has become a publicly celebrated ceremony involving many socio‑religious customs, formalities and rituals. These rituals, more than often, cost heavily in terms of time and money. Economic burden generally falls more heavily on the family of the bride who provides not only rich. feasts to the groom and his party but also gives large dowry to the bride which she takes to her husband's house.

Thus we see that in most of the rituals, ceremonies and forms of marriage, the females are generally at a disadvantage.

Islam abolished many evil customs and rituals connected with marriage thereby redeeming the position of the woman. A brief resume of the reforms introduced by Islam with regard to marriage is given as follows:‑

  1. System of exchange marriages, bride purchase and bride capture was abolished by Islam.

  2. No Jahez or dowry is to be given by the family of the bride under compulsion. On the other hand the husband has to give Mahr or dower to the wife compulsorily.

  3. It is not obligatory on the family of the bride to provide luxurious feasts or meals to the groom and his party. On the other hand, it is obligatory on the bridegroom to host a feast for his friends and relations to celebrate his marriage. According to some well known traditions, the Holy Prophet enjoined his followers and companions to host marriage‑feast or walima, how much simple it may be, to entertain their friends and relations when they marry the women.

  4. What to speak of male, even a female cannot be forced into marriage. Marriage has to be contracted with consent and even the consent of the girl has. to be obtained.

  5. If a minor girl is given in marriage by her guardian, she can exercise her option and repudiate the marriage when she attains puberty.

  6. Man and woman can look at each other before marriage and can express or communicate their liking or disliking to the proposal.

  7. Certain marital alliances were forbidden as unlawful; for example marriages between brother and sisters, parents and children etc. In some ancient societies, incest marital relationships had existed which have been strongly condemned by the Qur'an as an evil way.

  8. Marriage in Islam is a very simple affair. No elaborate and expensive rituals or ceremonies are held. One of the parties proposes and the other accepts. A marriage is contracted in the presence of two witnesses. A marriage feast is to be hosted by the husband.

[1] Encyclopedia Americana

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