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CHAPTER ONE
GENERAL INTRODUCTION
1.1 Background of the Study
Marriage is a social union or legal contract between people that creates kinship. In the Shari’ah marriage is a relationship of mutual love, mercy and kindness. In Islamic law marriage is civil contract between parties which allows them mutually to agree upon the terms and conditions of their future together. Marriage as the holy Quran stresses, is a strong bond and binding commitment to life itself, to society and to the normal and healthy survival of the human race1. It is commitment that married spouses make to one another as well as to Almighty Allah. It is the kind of commitment in which they find mutual fulfillment, self realisation, love and peace, compassion, serenity, comfort and hope2. Allah describes marriage and marital relationships between man and woman as one of his great bounties on mankind for which they should be grateful and they should demonstrate their appreciation of his bounties by being God-fearing. Allah says in the Quran- Mankind, fear your lord, who created you from a single soul, created of like nature its spouse from a single soul, and from the pair of them scattered countless of men and women, reverence God in whose name ye plead with one another and (reverence) the wombs (that bore you). Surely God ever watches over you3.
1Monzer.kahf.com; A Handbook on Marriage with marriage contract and marriage Certificate.www. Monzer.kahf. com. 2007 p.2 Accessed 15 Nov. 2011 2Ibid 3Qur‟an 4vs 1 Muahammad T. A. and Muahammad M. K.(1996). A summarized version of At- Tabari, Al Qurtubi and ibn Kathir with comments from Sahih Al-Buhari Darussalamu publisher and distributor Riyadh Saudi Arabia
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Marriage is one of the greatest signs of Allah, along with marriage come affection, love and mercy. Allah the Almighty says: And among His signs is that He created for you, of yourselves, spouses that you may dwell in tranquility with them, and Has set love and mercy between you, surely in that are indeed signs for those who reflect. He also says it is He who have created man from water, and made him kindred of blood and marriage, your Lord is All powerful4. Under Islamic law, marriage is considered both a social agreement and a legal contract. Thus, as in any other contract there are elements which are considered essential to its existence. Because of the importance of marriage in Islam, the Shari’ah gives the marriage contract a special attention and provides for certain elements that are essential to the validity of the contract according to Maliki and majority of the scholars. They are as follows: i Offer and acceptance ii Consent of the parties iii The wali iv Sadaq v Witnesses vi Prohibited degree of marriage5 There must be offer from the guardian of the lady and there must be acceptance from the other party. In essence the consent of the parties to the contract is essential to the validity of the contract6.
4 Quran 30 vs 21 5Gurin A.M. (2001) An Introduction to Islamic Family Law Al-rauf Press Limited, Zaria, p.48 6Ibid
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A wali is the closest Muslim male kin of the bride. It is the man who would be her guardian if she is a minor. Normally the wali is her father but in case he is not alive then her brother, son, paternal grandfather, paternal uncle e.t.c. may stand as a wali7. Sadaqis a required marriage gift given by the groom to the bride. It is obligatory and makes a component of the marriage contract. It also represents the groom‟s commitment to take care of the family expenses including those of her personal needs. Allah says:“And give women (on marriage) their dowry as a pure gift”8. Sadaq may be in money or in kind, but it should be specified in its kind and quantity in the marriage contract. Sadaq may be paid in full at the time of contract (or before), part of it or the whole may be postponed to a definite or indefinite date in the future9. The presence of witness is essential to the validity of marriage contract. The Prophet is reported to have said that there is no valid marriage without witness10. To this end, we will like to add that apart from the above mentioned elements which are also agreed upon by all the scholars of Islam, there is no other element that is so essential to the validity of marriage in Islam. After the nuptial is tied and family is established, as the Almighty Allah and his messenger taught us how to go about the preliminaries of marriage, so also has he decreed some responsibilities for both spouses11. Both man and woman have great responsibilities in establishing and nurturing a family unit. It is important for man and woman to have a clear
7Aljibaly M.The quest for love & mercy. Regulation for marriage & wedding in Islam Al-katab and as-sunnah publishing p.66 8Quran 4 vs 4 9Monzer.kahf. opcit p.20 10 Ibid 11Aljibaly M. opcit p.5
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understanding of the great responsibilities that rest on their shoulders. That would make them work and cooperate well in order to fulfill their mission. There are certain rights that are due to the husband which are the duties and responsibilities of the wife to accord her husband, so also are rights due to the wife which are the duties of the husband to give to his wife failing which may lead to chaos and disorderliness in the family.
1.2 Statement of the Problems
(i) Failure to abide by the duty to maintain wives and children is one of the major sources of instability of marriage. Instability may also arise where the spouses do not know their rights. Instability in marriage has also being attributed to failure of the spouses to abide by the law. (ii) In family issues it is often asked whether the women have any right at all in her marriage supported by law which can be enforced in the court of law, for instance a woman under Islamic law has the right to maintenance and where a husband is wanting in this obligation the wife is entitled to enforce this right by seeking redress in the court of law.
1.3 Scope of the Study
This research work is limited to the Islamic law of marriage, relating to marital rights and obligations from the point of view of the four Sunni schools of jurisprudence. The work is limited to a geographic sphere of the application of the four Sunni lawa